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Employees must comply with work at height safety duties too

ANALYSIS: Two recent cases involving breaches of working at height regulations offer a clear reminder to workers of their own duties to take reasonable care for the health and safety of themselves and others.14 Mar 2018

Each of the cases involved a worker who was photographed on top of scaffolding without adequate precautions, such as edge protection or harnesses, in place. Both workers received fines and hefty suspended prison sentences. In both cases, no action was taken against the employer, which was found to have taken reasonable steps to avoid working unsafely at height.

Work at height guidance was overhauled in 2014 in the hope that the incidence of falls could be reduced "by giving simple and clear advice and tackling the myths that can confuse employers". Despite this, falls from height and falling objects from height remain one of the main causes of fatal accidents at work; particularly in the construction industry, where they account for 49% of total fatal accidents, according to Health and Safety Executive (HSE) statistics.

The matter is currently being revisited by an all-party parliamentary group (APPG), which recently began a call for evidence aiming to "understand the root causes and propose effective, sensible measures to reduce this toll". The APPG will then produce a report and recommendations on how the frequency of serious injuries and fatalities among those working at height can be reduced, and whether the existing Work and Height Regulations sufficiently protect workers.

Workers 'cutting corners'

Last month, Manchester scaffolder Terrance Murray pled guilty to breaching section 7(a) of the 1974 Health and Safety at Work etc Act at Greater Manchester Magistrates' Court. Murray had been photographed by a member of the public working on top of a scaffold in central Manchester at a height of between 13 and 18 metres without edge protection or a harness connected to the scaffold or building. He was sentenced to 26 weeks' imprisonment, suspended for one year, and 100 hours of community service; plus costs of £500 and a victim surcharge of £115.

Interestingly, an HSE investigation concluded that Murray's employer had taken all reasonable steps to reduce the risk of any of its employees falling while working at height. He had been well trained, and given the correct personal protective equipment to carry out his job safely. His employer was therefore not included in the prosecution.

The case has a lot of similarities with the prosecution of fellow scaffolder David Mullholland in December 2016. Mulholland was also photographed working atop scaffolding in central Manchester, at a height of about 27 metres above street level, without following proper safety procedures. He also pleaded guilty to breaching section 7 and was sentenced to six months' imprisonment, suspended for 18 months; and fined £1,400 and ordered to pay costs of £2,939.18.

Both cases are important reminders to employees working in the construction, manufacturing and similar industries to take reasonable care of their own health and safety, as well as the health and safety of others. The obligation to minimise risk includes a duty to take reasonable care for your own safety and health.

The message is clear: adopting a cavalier attitude to personal risk will not be tolerated. While this may at first seem harsh, it is worth bearing in mind that assumption of unnecessary personal risk in high-risk workplaces in particular often has potential consequences for others - for example, the risk of potential injury from falling tools.

Risk of harm under the Sentencing Guideline

Although the 2005 Work at Height Regulations create a distinct regulatory regime for working at height, prosecutions are frequently brought under the more general HSWA or the Construction (Design and Management) Regulations. Recent corporate prosecutions show significant sentences for both fatal and non-fatal incidents, including the 2016 prosecutions of both Tesco Stores Ltd and Tesco Maintenance Ltd for an incident in which an employee fell 30 feet through a skylight but suffered only minor injuries. The companies were fined £200,000 and £300,000 respectively, plus costs.

Fines of this nature are a stark reminder of the fact that health and safety offences are concerned with failures to manage risks, and do not require proof that the offence caused any actual harm. The known risks of death, physical or mental impairment and significantly reduced life expectancy associated with working at height mean that these offences will almost always fall into the highest 'level A' category of harm under the relevant Sentencing Guideline, which is then used in combination with the offender's culpability, turnover and the likelihood of harm occurring to determine a starting point sentence.

The largest fine to date associated with a fall from height appears to be the £3 million fine imposed in November 2017 on Spanish construction company Porvi Construcciones y Contratas over a 2015 incident in which a worker was fatally injured after a fall at a demolition site in Wales. This was an interesting case in which the company failed to provide any financial information to the court and was sentenced in absentia. The size of the fine suggests that the company was determined to be of medium size for the purposes of the guideline and its offending was categorised as very high culpability, harm category A leading to a fine range of between £1m and £4m.

In January 2017, Warburtons was fined £2m plus costs of £19,609.28 after a worker fell nearly two metres from the top of a mixing machine while attempting to clean it and fractured his spine. The HSE's investigation revealed that workers were not adequately supervised or trained on cleaning the mixers, or on working at height.

The size of the fine in this case points to the sentencing judge having considered the company to be a very large organisation, meaning he would have been justified in moving outside of the suggested category range in the guideline. The company had also been prosecuted previously for breaches of health and safety law before the new guideline took effect.

In September 2017, Greencore Grocery Ltd was fined £1m plus costs of £30,000 for a 2013 incident in which a contractor was fatally injured while undertaking electrical work at the company's premises. The HSE's investigation revealed that the company had not properly planned the activity, and that a stepladder provided by the company was also too short. Following the incident, the company was served with a prohibition notice for failing to take suitable and sufficient measures to prevent any person from falling.

The level of fine imposed suggests that the judge was minded to move beyond the recommended starting point fine of £1.3m under the guideline before awarding the company the usual one-third credit for its guilty plea due to aggravating features in the case. The guideline provides a non-exhaustive list of such aggravating factors; which include previous convictions, cost-cutting at the expense of safety, obstruction of justice and a poor health and safety record.

Although a £700,000 fine imposed on Whirlpool UK in respect of a fatal fall at the end of November 2017 was ultimately reduced to £300,000 on appeal, this case should not be seen as a retreat from the trend under the Sentencing Guideline to issue large fines in respect of the most serious breaches of health and safety legislation. For a company with a turnover of £50m and over, charged with a low culpability, harm category 3 offence, the guideline provides for a starting point fine of £35,000. However, the original judge arrived at a starting point of £1.2m that was reduced to £700,000 after taking into account the company's mitigation and guilty plea.

The appeal focused on two main criticisms of the judge's approach: that the starting point of £1.2m was far too high, and the judge failed to examine the financial circumstances of the company including its profitability. Since the company's failings were a significant cause of death, the Court of Appeal believed that this would justify increasing the harm category by one and moving to the top of the next category range, or £250,000. In addition, taking into account the company's very large turnover, the Court of Appeal believed it was appropriate to increase the harm category by one again to arrive at an appropriate starting point. The guideline provides for a range of fines from £180,000 to £700,000 for low culpability, harm category 1 offences.

The Court of Appeal agreed the original fine had been manifestly excessive and considered a starting point fine of £500,000 was appropriate. This starting point was reduced to £450,000 to reflect the company's mitigation and then to £300,000 due to its guilty plea. The Court of Appeal did not believe this figure required any adjustment to reflect the company's limited profitability compared to its turnover.

Working at height and corporate manslaughter

A significant proportion of prosecutions under the 2007 Corporate Manslaughter and Corporate Homicide Act have been in connection with incidents involving work at height. This includes the 2017 prosecution of Martinisation (London) Ltd which has resulted in the largest fine for corporate manslaughter to date: £1.2m. Two men died after they fell to their deaths from a first floor balcony as they hoisted a sofa up from the pavement when the railings gave way in November 2014.

Martinisation, which had a turnover of £9.7m and pre-tax profit of £2,400 in the relevant year, was convicted following a trial of two counts of corporate manslaughter. Director Martin Guraj was also convicted of health and safety offences, sentenced to 14 months imprisonment and disqualified from being a director for four years. However, the company has been in liquidation since August 2016 and, according to a statement filed by the liquidators, currently owes almost £2m to its creditors. Therefore, it appears unlikely that the company will have sufficient funds to pay the fines.

Other relevant corporate manslaughter prosecutions have resulted in six-figure fines following some very serious incidents. These include a £500,000 corporate manslaughter fine and £160,000 fine for a health and safety offence, plus £53,115.34 in costs, imposed on Ozdil Investments and Koseoglu Metal Works Ltd in May 2017 following the death of a contractor during a roof repair; a £300,000 fine imposed on SR and RJ Brown Ltd in March 2017 following the death of an employee; and a £600,000 fine imposed on Bilston Skips Ltd in August 2016 following the death of a worker.

Kevin Bridges and Alex Hudson are health and safety law experts at Pinsent Masons, the law firm behind