Tom Day Represents Local Authority in Health and Safety Sentencing

Tom represented a local authority that faced one charge of failing to ensure the health and safety of its employees by failing to manage the risks associated with the use of vibrating tools (s.2 Health and Safety at Work Act 1974) and two charges of failing to submit RIDDOR reports in relation to an employee who had been diagnosed with Hand Arm Vibration Syndrome.

Following representations, the allegations of failing to submit RIDDOR reports were withdrawn, and a guilty plea was entered to the section 2 offence. The Health and Safety Executive’s submissions on sentencing asserted that the culpability level was high, including that the local authority had fallen far below the appropriate standard, concerns of others had been ignored, and the breaches had subsisted for approximately 14 years.

As to harm, the prosecution asserted that the harm category was 2, based on level B harm having been risked and the risk of that harm arising being high. It also suggested that the offence exposed a number of people to the risk and was a significant cause of actual harm, thus moving up a harm category or within the harm category ought to be considered. No aggravating or mitigating factors were identified by the prosecution.

The local authority’s net revenue budget was in the region of £300 million, and so the question of whether it was a ‘very large organisation’ arose. The prosecution therefore submitted that the appropriate starting point, without any uplift for being a ‘very large organisation’ and without moving up a harm category, was £1,100,000, with a range up to £2,900,000. In the event of moving up a harm category, that starting point increased to £2,400,000.

The Defence served an expert report which concluded that, despite diagnoses of Hand Arm Vibration Syndrome for a number of employees by occupational health practitioners, there was in fact insufficient evidence to establish such a diagnosis, and thus causation was not established. The prosecution did not dispute this report.

On behalf of the local authority, Tom submitted that the culpability level was, in fact, medium, in that systems were in place but were not sufficiently implemented. It was agreed that the harm risked was level B but that the risk of it arising was low or, at worst, medium, leading to a harm category of level 4 or level 3. The starting point according to the sentencing guidelines, based on those submissions, would be £130,000 (low likelihood of harm) or £300,000 (medium likelihood of harm). Numerous mitigating factors were advanced, including the high level of cooperation, the good health and safety record, and the changes implemented by the local authority. Submissions were also made regarding the impact upon service users of a substantial financial penalty.

The sentencing judge concluded that the appropriate culpability level was medium, with harm category 3, and that no uplift was warranted based on the exposure of a number of people or the suggestion of causation. Having considered the impact upon service users, the mitigating factors, and credit for a guilty plea, the appropriate financial penalty was set at £60,000.

Counsel was instructed by Mark Thompson and Alex Traynor of DWF LLP.

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