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Legal Spotlight - Feb 23

30 January 2023

Recent sentencing highlights individual responsibility. Kevin Bridges takes a look at some of these cases.

THE RECENT conviction and sentencing of individuals for failings which led to the death of workers underlines not only that health and safety and fire safety regulators will not shy away from pursuing individuals at fault but that where a corporate entity is involved the shield of incorporation will not confer protection on them.

The first case involved the conviction and sentencing of a roofing company and its sole director; the roofing company was fined and its sole director given a suspended prison sentence after a worker was fatally injured when he fell 12 metres through a skylight. Mr May, who was a subcontractor for Davis Industrial Roofing Limited, was working on a storm-damaged warehouse roof at F&G Commercials Limited, in Barnsley with two others when he fell.

The work involved the replacement of more than 300 skylights on a fragile asbestos cement roof. An investigation by the Health and Safety Executive found Davis Industrial Roofing Limited had failed to provide an appropriate risk assessment, method statement, and suitable and sufficient fall protection measures for the roof work to be carried out safely.

The investigation found even though reasonably practicable precautions were available, poor planning had resulted in a risk assessment and method statement that was not suitable and sufficient. The work was poorly supervised and carried out unsafely.

Melvyn Davis, the sole director of the company, who had drawn up the risk assessment and method statement and had regularly visited the site to monitor progress, had failed to provide suitable and sufficient fall protection measures and consented to the use of an unsafe system of work. This constituted a personal neglect for safety during the roof work. Mr Davis pleaded guilty to breaching Section 37(1) of the Health and Safety at Work etc. Act 1974 and was sentenced to eight weeks imprisonment suspended for 12 months and ordered to do 15 days of rehabilitation activity. Section 37(1) provides for personal liability for director, managers etc where an offence is shown to have been committed with their consent or connivance or to have been attributable to any neglect on their part.

Davis Industrial Roofing Limited, of Field Place, Wakefield, pleaded guilty to having failed to ensure the safety of employees and others insofar as reasonably practicable and was fined £20,000 and ordered to pay costs of £12,557.

Employers must take note; simply having a risk assessment and some monitoring in place will not suffice. Risk assessments must be tailored to meet the particular circumstances which prevail. They must be regularly reviewed and updated, with appropriate safeguards put in place to mitigate identified risk areas. Failure to do so can have catastrophic consequences. For the individual found to be at fault here the custodial sentence was suspended but courts are not averse to imposing an immediate loss of liberty where circumstances require it, as in the second case, below.

More recently Lancashire Fire and Rescue Service has reported on the custodial sentences handed down to Callum and Heather Goffin following a fatal fire at a working man’s club. Investigations revealed a breach of 19 articles of the Regulatory Reform (Fire Safety) Order.

Heather Goffin was found guilty of 13 charges and sentenced to 8 months immediate imprisonment while Callum Goffin was found guilty of 6 charges. Callum was given a six-month sentence, which was suspended for 12 months, and given 200 hours community order.

Investigations by Lancashire Fire and Rescue Services discovered a significant number of breaches of the Regulatory Reform (Fire Safety) Order, including a failure to identify and control the risks associated with a fan heater using LPG bottled gas, and the inability to safely evacuate the building due to an external security door being locked, preventing the inner fire exit from fully opening.

Commenting on the case, Lancashire Fire and Rescue Services reminded businesses that they “must ensure that where fire exits are fitted with security measures, these do not prevent people from leaving safely in the event of an emergency”.

The message is clear; regulators will take enforcement action against those that fall below the required standards in health and safety, including against individuals shown to be at fault, for whom conviction may lead to an immediate loss of liberty.

In the Goffin case the fire authority was also at some pains to remind duty holders that safety must not be compromised when cost savings are sought. For them, the emphasis was on underlining that fire safety remained vital, however that same goes for health and safety in general. This is particularly so where, as now, businesses strive to cut costs to remain afloat in the current economic climate. Efficiency savings must not lead to lowering in safety standards.

Kevin Bridges is a partner and head of health and safety at Pinsent Masons. For more information, visit www.pinsentmasons.com