Alton Towers operator, Merlin Attractions Operations Ltd, has been fined £5 million after admitting to breaching health and safety rules.

On 2nd June 2015, two of the carriages of the Smiler roller-coaster collided, seriously injuring five riders and leaving a further 12 people with minor injuries. Two of the victims needed to have their leg amputated as a result of the accident.

The judge, Michael Chambers QC, said: “This was a needless and avoidable accident in which those injured were fortunate not to have been killed or to have bled to death.

“It was, in my judgment, aggravated by the lack of proper emergency access to the accident site which meant that those injured remained trapped in great pain and distress hanging at an angle of 45 degrees some 20 feet above the ground for four to five hours before being released by the emergency services and taken to hospital.”

Tough new sentencing guidelines for health and safety breaches

On 1st February 2016, the new Sentencing Guidelines for Health and Safety, Corporate Manslaughter and Food Safety and Hygiene Offences (the Guidelines) came into force. The Guidelines direct the courts to approach the sentencing of these type of offences in a step by step manner. But the big change is that the level of the fine administered can be tied back to the turnover of the company.

How the Guidelines work

The Guidelines set out the range of sentences available depending on the offence committed. Firstly, the court must determine the offence category, using the culpability and harm categories which are set out in the Guidelines. Once the offence category is established, the court will state a starting point for the sentence to be applied by examining the company’s annual turnover. It will consider any aggravating and mitigating factors that could increase or decrease the sentence.

The seriousness of the offence could be increased if the court establishes the company:

  • Cut costs at the expense of safety;
  • Deliberately tried to conceal an illegal activity;
  • Obstructed justice in some way, such as failing to co-operate with the HSE investigation; and
  • Has a poor health and safety record.

The seriousness of the offence could be mitigated if the company demonstrates:

  • They have no previous health and safety issues
  • They have taken voluntary steps to remedy the breach;
  • Co-operated extensively with the investigation, beyond that which will always be expected;
  • A good health and safety record;
  • Effective health and safety procedures in place; and
  • Self-reporting, co-operation and acceptance of responsibility.

Directors of companies that commit health and safety offences also have a greater chance of receiving a custodial sentence under the Guidelines.

How the Guidelines have been applied so far in 2016

Since the Guidelines were brought in there have been a number of steep fines applied, including:

  • Tata Steel incurred a £1.98 million fine in July after two workers suffered hand injuries. The subsequent investigation by HSE found there were inadequate guards on some machinery and the company had failed to adequately manage the risk.
  • In September, a construction company in Surry was fined £800,000 after a contractor was run over on site and suffered life-changing injuries.
  • A company director was jailed for 12 months in August after his employee died due to a remote controlled Mobile Elevated Working Platform (MEWP) he was loading on to a truck fell from the ramps and crushed him. The court found that no risk assessment had been done, no adequate training systems were in place and no safe system of work had been created.

How can organisations and directors protect themselves from large fines and criminal prosecution?

Now that courts can link the level of fines applied to organisations to the turnover of the company in breach, it is imperative that all employers and company boards are familiar with health and safety regulatory compliance. Adequate and ongoing risk assessment practices and procedures, providing proper training to all staff and appointing a key person to manage health and safety compliance matters and liaise with the union and/or HSE can help reduce risks to employees and the public.

Regular mock health and safety audits also allow for any weaknesses in the existing health and safety framework to be picked up and a strategy to be developed to close any compliance gaps.

Most companies work incredibly hard and spend a considerable amount of money investing in the health and safety of their employees and the public. Now even greater vigilance is required to avoid harsh fines and/or custodial sentences in the event of a workplace accident.

Make sure you have all your bases covered.

Saracens Solicitors is a multi-service law firm based in London’s West End. We have dedicated and highly experienced employment and company law solicitors who can assist you with health and safety matters and corporate risk. For more information, please call our office on 020 3588 3500.

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