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SUPPLEMENT FEATURE yMachine Safety


Are manufacturers safe and up to date?


The revised sentencing guidelines for health and safety offences, introduced in February 2016, meant greatly increased fines for offences across all sectors, including manufacturing. Natalie Puce, health and safety partner at law firm, BLM, explores the impact the guidelines continue to have on organisations as well as individuals within the industry


T


he new guidelines mean that organisational safety has been put into sharp focus and hefty fines are promised for those companies failing to protect employees against known and preventable safety risks. Since then, fine values have rocketed


– in manufacturing, this has seen some fines reach £3.8 million. The guidelines require courts to consider culpability, the seriousness and likelihood of harm caused or posed together with turnover. A business with a turnover in excess of £50 million could face fines of up to ten million pounds for the most serious offences, whilst corporate manslaughter charges could incur fines reaching £20 million. In the three years since the guidelines were introduced, fines have seismically increased. The ten most significant fines handed down total £30.4 million. Whilst large organisations have grabbed the headlines for the huge fines, the majority of prosecutions are brought against much smaller businesses; these may lack the manpower or financial resources to adequately fund well-structured safety management, and often do not have the same access to health and safety information, resources or support. The fines are commensurate with turnover and whilst smaller businesses rarely face seven figure fines, they can be subject to significant fines running into the hundreds of thousands – potentially catastrophic for their organisation. No court sets out to destroy a business and its ability to remain viable following a fine is taken into consideration; however, this does not mean the fine will not be punitive and the impact must be felt across the business. Culpability can scale the size of a fine considerably, sometimes from seven figures to a lower six figure sum. If an organisation admits guilt in the event of a breach, but is able to demonstrate and evidence a progressive approach to health and safety (e.g. regular risk assessments, minutes for meetings discussing existing risks and how to solve them), this can count in reducing the level of culpability, and therefore the size of the fine. In addition, last summer, the Sentencing Council announced


increased sentences for individuals convicted of gross negligence manslaughter (GNM). GNM was initially excluded from the 2016 guidelines, and this new guidance adopts a more punitive approach to sentences; with the most serious cases seeing individuals face up to 18 years in prison – current sentences for these cases rarely breach the ten-year period. Significantly, the sentences are retrospective, so will apply to all cases heard before the courts after November 2018, irrespective of the date of offence. Fines for manufacturing health and safety breaches have totalled over £42 million since 2016. The largest fines include £3.8 million to Explore Manufacturing and Select Plant Hire Company. The two companies were found liable for the death of an employee in 2017, after he was thrown from a mobile elevating platform. Fatalities and life-changing injuries are a common feature of manufacturing health and safety fines; of the five highest-value fines, three involved workplace deaths. Amputations are also unfortunately very common in the industry, and for manufacturers classed as ‘very large’ or ‘large’, this could result in fines in the millions if they are found in breach of health and safety regulation.


automationmagazine.co.uk


For example, Tata UK was fined £1.98 million after two employees lost fingers and hands after a machine was inadequately guarded, being sentenced under Section two of the Health and Safety At Work Act 1974. Just over a year later, the company suffered another significant penalty after being found in breach of the same section of the same act (and Section three (1) also) for an incident which left five workers exposed to the risk of serious injury of death from a toxic vapour cloud; this time, it was fined £930,000. Manufacturing is a hazardous industry and the risk of harm is


widespread across multiple operations. The risk of harm is a feature of the guidelines so organisations that put employees or the public at risk can be prosecuted, irrespective of whether there is an actual injury. So, in practice, a system of work which exposes employees to risk is vulnerable to a prosecution. The more employees exposed to the risk is taken into consideration, as is the length of time that risk has existed. It is therefore essential that thorough, pro-active risk assessments are undertaken and regularly reviewed. As well as the use of heavy machinery, there are many and varied aspects of risk in manufacturing, from working from height to the use of hazardous substances. AGC Chemicals Europe was fined £300,000 in 2017 after a worker suffered acid burns requiring two skin grafts. It is especially important for manufacturers to consider and control the risk of harm not only for employees, but for the users of their product. Martin Baker Aircraft Company, received a £1.1 million fine in February last year. The manufacturer of ejector seats was found in breach of Section three (1) following the death of a Red Arrows pilot, who was inadvertently ejected from his seat during pre-flight checks. Stress in the workplace bubbles under the radar in many industries, including manufacturing. The long hours and high-pressured nature and turnover of work makes it a high-risk industry for stress-related conditions. The HSE recently developed a toolkit to help companies address and support employees experiencing stress-related conditions, and though there is currently no formal regulation in place to address this (beyond the Health & Safety At Work Act 1974’s umbrella requirement of an employers’ ‘duty to protect’), this public declaration of interest suggests it may be a matter of time before measures are introduced. In some companies, a culture of confusion, or even disinterest, can exist in response to health and safety regulation. It is therefore vital to tackle this culture from the top down, and manage regulations in a proactive manner which leads to real change for the safety of staff. The last three years have sent a stark message across all sectors and manufacturing remains a very high-risk industry. Engagement with safety issues and education across the industry is key to ensuring that the safety statistics improve. Managing risk must be a priority in this already challenged sector. Focusing on managing risk within manufacturing and associated support networks may help reinforce the ongoing and critical messages around safety.


CONTACT: BLM


Tel: 020 7638 281 Web: www.blmlaw.com


Machine Safety | June 2019 S9


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