A year of record levels of penalties

The Sentencing Council’s guidelines were implemented in England and Wales as of 1 February 2016 but are also used as standard in Scotland.

The repercussions have been swift and significant, with fines reaching record levels and businesses often finding themselves unprepared for the penalties enforced on them. In particular, recent breaches in the Control of Noise at Work Regulations (CoNAWR) and Control of Vibration at Work Regulations (CoVAWR) have been reported, which is concerning, considering that these guidelines have been in place for more than 10 years.

As we approach the first anniversary of the introduction of the guidelines, it is a trend that shows no sign of abating. It’s therefore critical that employers are made aware of some of the common compliance issues in the workplace that can be easily rectified, ensuring the safety of employees and protecting companies from fines that could ultimately put them out of business.

Understanding the guidelines

Before the new guidelines were introduced last year, the existing sentencing guidelines in place focused on offences relating to death or corporate manslaughter, with around 600 cases recorded per year. This comparatively small number of cases meant that many judges and magistrates were not overly familiar with health and safety offences and because of this, sentencing often lacked consistency.

In parallel, in recent years, the Health and Safety Executive (HSE) has been hit hard by budget cuts, which, combined with local councils reducing workplace inspections, posed a challenge in ensuring that all companies were regularly and consistently audited and compliance was enforced.

The new binding guidelines were published to address these issues and create a more universal framework for addressing health and safety offences for companies or offenders based on a tiered approach that would give the courts more direction and control.

When sentencing health and safety crimes under the new guidelines, the following criteria is considered against a tiered table of penalties; the size of the company, the degree of harm risked and culpability. Financial factors such as profit margin or impact on employees are also considered as part of a total of nine steps that must be assessed in order to arrive at an appropriate fine.

The goal in establishing the new guidelines and the resulting increase across the board in health and safety prosecutions and fines is to act as an incentive for companies to take greater care in understanding the guidelines and ensuring compliance; thus relieving some of the pressure on the HSE and other bodies.

Recent penalties and their impact

It is now becoming commonplace for companies to be hit with fines in excess of £1m – something that was a rarity before the new guidelines were introduced, with the exception of high profile cases or incidents involving multiple fatalities. Recent examples include the record £5m penalty for Merlin over the Alton Towers crash, a £4m fine for Network Rail after a level crossing fatality, the £1.8m fine for Legionnaires’ risk at G4S and the £2.2m fine for a fatality at wholesaler Decco. J G Hale Construction in South Wales was also fined £100,000 last year after an unannounced site visit found that fire prevention measures had not been properly implemented and construction vehicles on site had been improperly managed, posing a serious risk to employees.

Even when fines don’t reach this level, the amounts can still be significant and have a substantial impact on the offending companies.

Noise and vibration issues

The new guidelines have had a noticeable impact in the area of noise and vibration and encouraging compliance with CoNAWR and CoVAWR, both introduced in 2005. Employers have a duty to ensure compliance with these regulations, which places a responsibility on them to identify and manage their employees’ risks from occupational noise and vibration exposure. In complying with the regulations, employers can limit the risk of prosecution (and the resulting fine), as well as potential compensation claims from employees in the future.

While incidences of noise-induced hearing loss has steadily reduced in recent years, the number of cases of disorders resulting from hand-arm vibration exposure, such as Hand-Arm Vibration Syndrome (HAVS), Vibration White Finger (VWF) and Carpal Tunnel Syndrome (CTS) has not shown such a consistent decline. In fact, HSE has identified that VWF is the most commonly prescribed disease under the Industrial Injuries Disability Benefit scheme over the last 10 years.

There are a number of recent high profile cases in which companies in Britain have been prosecuted for allowing employees to work in an environment where they have suffered long-term damage due to excessive or prolonged vibration. In all of these cases, the employer has suffered significant financial sanctions by the court and it has also attracted unwelcome publicity as a result.

In May last year, a pipe manufacturer based in Newport, Wales was fined £200,000 plus costs for safety failings after an investigation by the HSE found that no sufficient risk assessment or health surveillance had been carried out on the premises. This was reportedly linked to seven reported cases of HAVS or CTS and the HSE found that employees had been using vibrating tools without adequate training or practical controls in place to reduce vibration risk.

Even before the new guidelines were established, there was a precedent for high profile cases in this area. In July 2014, an aerospace engineering company in Nottinghamshire was fined a total of £125,000 and ordered to pay more than £65,000 in costs for failing to protect 24 of its employees from the effects of vibration.

While employees at engineering companies are often at the greatest risk, due to the need to use vibrating power tools and machinery, other industries must also be alert to the hazards.  Another recent case found that a worker had been left with permanent injuries after being diagnosed with hand arm vibration (HAV), for which their employer was fined £250,000.

Ensuring compliance

Understanding the potential hazard level in the workplace is essential, so an appropriate risk assessment, management and control strategy can be employed. This should always start with a positive procurement strategy of buying ‘quiet’ or ‘low vibration’ equipment, or where practicable reducing exposure through engineering or procedural measures.

It’s also crucial that companies have appropriate records of all regular procedures, including maintenance, inspection and testing activities, in place and that these are updated as a matter of course. A way to ensure this takes place is by having clearly defined roles and responsibilities for all those involved with health and safety practices.

Having a suitable programme of staff training is also required to ensure employees are suitably informed and have the required level of knowledge needed to both protect themselves and achieve compliance. For example, this could be training on the risks associated with exposure to noise and vibration in the workplace and potential resulting conditions such as HAVS, CTS and VWF, and how to protect against these.

Provision of and training in the use of appropriate Personal Protective Equipment (PPE), when relevant, is also key, along with any guidelines around limiting exposure to potential hazards such as noise and vibration is also recommended best practice.

It’s imperative that employers are vigilant and stay on top of health and safety obligations, ensuring that an appropriate and adequate strategy is in place, which in-turn will protect employees and help achieve long-term compliance.

Richard Cope is technical director (Acoustics & Vibration Group) at Bureau Veritas