Weighing up the law


Laura Page considers the fine imposed on JD Sports and issues faced by retailers at Christmas


the Regulatory Reform (Fire Safety) Order 2005 [FSO]. On 19 October 2017, the company appeared at Wolverhampton Crown Court in relation to six offences under the FSO. When fire safety officers visited their store in the run up to Christmas 2015, they discovered breaches, including protected exit routes and emergency exit door escape routes blocked by crates and stock. The fire authority advised this should be rectified,


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and returned two weeks later, possibly still within the busy period. Unfortunately no steps had been taken to rectify the situation, and unsurprisingly a prosecution followed. In my pre law life I worked briefly in retail management, and I don’t find it very hard to imagine this problem arising. Every outlet has a warehouse to store products


when they are delivered, and to replenish from as the day goes on. At busier times like Christmas, turnover of products – regardless of the type of item – is significantly higher, as everyone buys food and gifts. As such, significant strain can be put on the premises’ capacity to hold and turn over stock. Clearly, while sales go through the roof at


Christmas for lots of retailers, their premises remain the same size, so it can be quite a challenge to manage goods turnover to ensure everything gets onto the shop floor as quickly as possible, and does not linger in the warehouse. A couple of years ago, retailers were said to have sold 10 million turkeys and 250,000 geese over Christmas, items which usually sell in much lower volumes, and suddenly space needs to be found for them to be stored and sold. It is fairly easy to imagine the fire safety and health and safety issues storing such extra volumes of goods may cause. In fact, I have a not very fond memory of calling around lots of stores in the


INCE IT’S the festive season, I thought it would be particularly relevant to mention the prosecution of JD Sports for offences under


national chain I worked for, trying to offload many crates of sprouts to avoid the same problem! This stock management issue is exactly what


JD Sports pointed to in their mitigation. Unfortunately, it can’t have helped that they had identified this in their own risk assessment 18 months before, and it seemingly had not been addressed. However, they described their problem – that they had an issue managing excess materials and an unprecedented volume of stock – and explained it had now been rectified with an improved stock management system and change of premises. I can’t help but notice how different the level of fine might have been if something similar to health and safety sentencing was in place for fire safety. In 2016, JD Sports’ turnover was £1.8 billion, so under health and safety guidelines they could be considered a very large company. It seems likely this would be a high culpability case, as they had identified the issue in their own risk assessment, and it was pointed out by the fire authority. In terms of levels of harm risked, they pleaded


guilty, and so must have accepted that the breaches risked death or serious injury – therefore it seems at least a harm category 2 case. In this scenario, for a health and safety offence, the sentence for a large company would start at £1.1 million and a range between £550,000 and £2.9m. For a very large company, the court is entitled


to consider going outside these guidelines or up the category ranges, and therefore the fine potential is considerably higher for health and safety than the £60,000 imposed on JD Sports. One wonders if similar guidelines will therefore follow for offences under the FSO in time


Laura Page is a solicitor in the health and safety team at Pinsent Masons. For more information, view page 5


12 DECEMBER 2017/JANUARY 2018 www.frmjournal.com


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