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IN THIS UPDATE
Introduction
New sentencing guidelines introduced for corporate manslaughter, health and safety and food safety
Dichloromethane (DCM) Restriction: firm sentenced after worker dies after inhaling paint stripper
Dumpers: construction firm sentenced after dumper truck topple
Introduction
Last week, we looked at the Corporate Manslaughter and Corporate Homicide Act 2007, and the impact its introduction has had on companies and organisations. This week, new sentencing guidelines have been introduced for corporate manslaughter, as well as health and safety and food safety. Publication of the guidelines (by the Sentencing Council) ensures that for the first time, there will be comprehensive sentencing guidelines covering the most commonly sentenced health and safety offences and food safety offences in England and Wales.
Also, further to news last week of a motor vehicle repair company being fined £50,000 following the death of a worker after inhaling dichloromethane (DCM) fumes while cleaning a chemical paint stripping tank, we share HSE guidance on the safe working practices that should be followed where the use of paint stripper containing DCM is permitted, i.e. in industrial installations only.
And finally, we close with HSE guidance on the safe use of dumpers, following the recent sentencing of a construction firm after a worker was injured when a 10 tonne dumper truck he was driving overturned and landed in an open excavation.
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New sentencing guidelines introduced for corporate manslaughter, health and safety and food safety
New sentencing guidelines have been published this week aiming to ensure a consistent, fair and proportionate approach to sentencing organisations or individuals convicted of corporate manslaughter, health and safety and food safety and hygiene offences.
Offences that come under the guidelines are very varied and could include a building firm that causes the death of an employee by not providing the proper equipment for working at height, a restaurant that causes an outbreak of e. coli poisoning through unsafe food preparation, a manufacturer that causes injury to a new worker by not providing training for operating machinery or a gas fitter whose sub-standard work leads to the risk of an explosion in someone’s home.
The publication of the guidelines ensures that for the first time, there will be comprehensive sentencing guidelines covering the most commonly sentenced health and safety offences and food safety offences in England and Wales. Until now, there has been limited guidance for judges and magistrates in dealing with what can be complex and serious offences that do not come before the courts as frequently as some other criminal offences.
The introduction of the guidelines means that in some cases, offenders will receive higher penalties, particularly large organisations committing serious offences – such as when an organisation is convicted of deliberately breaking the law and creating a high risk of death or serious injury. It is not anticipated that there will be higher fines across the board, or that they will be significantly higher in the majority of cases to those currently imposed.
The increase in penalties for serious offending has been introduced because in the past, some offenders did not receive fines that properly reflected the crimes they committed. The Council wants fines for these offences to be fair and proportionate to the seriousness of the offence and the means of offenders.
In order to achieve this, the guidelines set out sentencing ranges that reflect the very different levels of risk of harm that can result from these offences.
Corporate manslaughter always involves at least one death, but health and safety offences can vary hugely; they may pose the risk of minor harm or lead to multiple fatalities. Food offences are also wide-ranging. They could involve poor hygiene or preparation standards in a restaurant kitchen that put customers at risk of illness or that cause fatal food poisoning.
The sentencing ranges also take into account how culpable the offender was. This could range from minor failings in procedures to deliberately dangerous acts.
While prison sentences are available for individuals convicted of very serious offences, most offences are committed by organisations and therefore fines are the only sentence that can be given.
The guidelines use the turnover of the offender to identify the starting point of the fine. Turnover is used as this is a clear indicator that can be easily assessed.
However, turnover is never the only factor taken into account. The guidelines require the court to “step back”, review and adjust the initial fine if necessary. It must take into account any additional relevant financial information, such as the profit margin of the organisation, the potential impact on employees, or potential impact on the organisation’s ability to improve conditions or make restitution to victims. This means sentences will always be tailored to the offender’s specific circumstances. Fines may move up or down or outside the ranges entirely as a result of these additional mandatory steps.
Legislation requires that any fine imposed must reflect the seriousness of the offence and take into account the financial circumstances of the offender. All factors being equal, a similar level of fine given to a large, wealthy corporation on the one hand and a sole trader with a modest turnover on the other would be unfair, just as the same speeding fine given to a premiership footballer and someone on an average income would not achieve the same level of punishment or deterrence.
The UK’s record on worker fatalities is good, but where such offences are committed, the Council believes fines should be available which reflect the seriousness of the offence. As well as causing fatalities, health and safety offences may risk or cause a wide spectrum of injury and illness, including a life-changing disability or health condition for victims.
While addressing remedial action with offenders is the responsibility of the Health and Safety Executive rather than the courts, the guideline does provide for remedial orders to be made by the court in addition to or instead of punishment in cases where they may be appropriate. The guideline also includes a range of mitigating factors which allow for voluntary positive action to remedy a failure on the part of offenders to be reflected in sentences.
Sentencing Council member Michael Caplan QC said:
“These guidelines will introduce a consistent approach to sentencing, ensuring fair and proportionate sentences for those who cause death or injury to their employees and the public or put them at risk. These offences can have very serious consequences and it is important that sentences reflect these.”
Rod Ainsworth, Director of Regulatory and Legal Strategy at the FSA said:
“We welcome these guidelines. They will ensure that there is consistency in sentencing for food safety and food hygiene offences across the country. They will also ensure that offenders are sentenced fairly and proportionately in the interests of consumers.”
Following their publication this week, the guidelines will come into force in courts on 1 February 2016.
© Crown copyright: contains public sector information published by the Sentencing Council, and licensed under the Open Government Licence v3.0
Dichloromethane (DCM) Restriction: firm sentenced after worker dies after inhaling paint stripper
An employer has been fined £50,000 after a worker died after inhaling fumes while cleaning a chemical paint stripping tank at a motor vehicle repair company.
Dundee Sheriff Court heard how in August 2011, the worker was employed by the company to undertake general duties which included collections and deliveries, removing and replacing tyres, and moving alloy wheels into, and out of, the chemical stripping tank. He was overcome by dichloromethane vapour while attempting to remove stripping debris from within the chemical stripping tank and died as a result of his exposure to those vapours.
The Health and Safety Executive (HSE) investigation found the worker was provided with no formal training in respect of the use of the chemical stripping tank and the chemical stripping agent used by the company. Instead he was given ‘on the job’ training.
For more information about chemicals at work visit the website at http://www.hse.gov.uk/chemicals/
Dichloromethane (DCM) Restriction
A new ban on some supply and use of paint strippers containing the hazardous substance ‘dichloromethane’ (DCM, and also known as methylene chloride) is coming into force. For the purposes of this ban, the term ‘paint stripper’ is taken to mean DCM (or mixtures containing it) intended for stripping paint, varnish or lacquer.
Pure DCM (or mixtures containing it) sold and used for other purposes (e.g. degreasing) aren’t banned and can continue to be sold and used (although not for stripping paint).
The new ban makes a distinction between three types of use:
- ‘Industrial’ use of paint strippers in ‘industrial installations’ (i.e. facilities where paint stripping takes place) – this is allowed to continue as long as certain safe working practices are followed.
- ‘Professional’ use by workers where this takes place away from an industrial installation. This will be banned, but UK can choose to allow continued safe use by specifically trained professionals.
- ‘Consumer’ use by the general public, such as DIY. Supply to consumers is banned.
Industrial use
Use of DCM-based paint strippers can continue in industrial installations so long as certain safe working practices are followed. Supply for these uses is also permitted. The required conditions for continued industrial use are listed in paragraph 4 of the restriction text:
(a) effective ventilation in all processing areas, in particular for the wet processing and the drying of stripped articles: local exhaust ventilation at strip tanks supplemented by forced ventilation in those areas, so as to minimise exposure and to ensure compliance, where technically feasible, with relevant occupational exposure limits;
(b) measures to minimise evaporation from strip tanks comprising: lids for covering strip tanks except during loading and unloading; suitable loading and unloading arrangements for strip tanks; and wash tanks with water or brine to remove excess solvent after unloading;
(c) measures for the safe handling of dichloromethane in strip tanks comprising: pumps and pipework for transferring paint stripper to and from strip tanks; and suitable arrangements for safe cleaning of tanks and removal of sludge;
(d) personal protective equipment that complies with Directive 89/686/EEC comprising: suitable protective gloves, safety goggles and protective clothing; and appropriate respiratory protective equipment where compliance with relevant occupational exposure limits cannot be otherwise achieved;
(e) adequate information, instruction and training for operators in the use of such equipment.
Paint strippers supplied for industrial use must be labelled in accordance with either the CHIP Regulations or CLP, and must also be ‘visibly, legibly and indelibly marked’ with the text ‘Restricted to industrial use and to professionals approved in certain EU Member States — verify where use is allowed.’ Suppliers will wish to satisfy themselves that mixtures are being supplied for legal uses, in order to explain such a due diligence approach if challenged.
Professional (mobile) use
The ban first took effect on 6 December 2010. Since then formulators of DCM-based paint strippers have not been allowed to put their products into the supply chain for use outside industrial installations. Suppliers could however continue to sell existing stocks to professionals or the public for a further year, until 6 December 2011. On the 6 June 2012 all use of DCM-based paint strippers by professionals outside industrial installations had to cease.
For clarification or more information, please contact us on 07896 016380 or at Fiona@eljay.co.uk, and we’ll be happy to help.
Dumpers: construction firm sentenced after dumper truck topple
A construction firm has been sentenced after a worker was injured when a 10 tonne dumper truck he was driving over turned and landed in an open excavation.
Peterborough Magistrates’ Court heard the construction firm failed to put in place measures such as stop blocks to prevent vehicles from falling into the excavation, failed to plan and implement a safe system of work, and inadequately trained the dumper truck driver.
The Health and Safety Executive (HSE) prosecuting said the incident could have easily been avoided by putting simple safety measures in place.
The driver of the truck sustained crush injuries to his wrist.
After the hearing, the HSE Inspector who investigated and prosecuted this case, said: “Accidents can be prevented by ensuring construction work is planned, managed and monitored in a way that ensures it is carried out safely from the start, including for example the use of stop blocks at the edge of excavations”.
Dumpers
What you need to do
The law says you must organise your site to segregate pedestrians and dumpers. The dumpers used must be carefully selected, maintained and operated by trained drivers. Key issues are:
- Dumper hazards
- Controlling the risk
- Training and competence
- Inspection and maintenance
What you need to know
A safe workplace for all vehicle operations must be established by separating pedestrians and vehicles and providing hazard-free traffic routes. See Traffic management (http://www.hse.gov.uk/construction/safetytopics/vehiclestrafficmanagement.htm).
Dumper hazards
Most fatal injuries involving dumpers are caused by:
- Overturning – over 60% of dumper deaths involve the driver when the vehicle overturns;
- Collision – most other deaths occur when pedestrians are struck by the dumper when it is reversing or going forwards on site.
Controlling the risk
It is important to select the right dumper for the job. There are a number of key factors to consider when controlling the significant hazards arising from use of dumpers. These are:
- Gradients: Plan the work so that dumpers are used on gradients that are within their safe working capacity. Check with the manufacturer.
- Competence: Arrange for dumpers to be driven by trained and competent operators and implement a system for supervising safe driving practice.
- Safety devices: Check that dumpers are provided with roll-over protection and that drivers use their seatbelts.
- Loading: Make sure loads are distributed evenly and provide purpose-built platforms for regularly transported items, eg large drums.
- Vision: Make sure that loads do not obscure driver vision.
- Edges: Provide wheel stops at a safe distance from edges of excavations, pits and spoil heaps to prevent site dumpers falling when tipping.
Training and competence
There are two categories of worker who must be trained and competent regarding dumper hazards and precautions:
- Drivers should be trained, competent and authorised to operate the specific dumper. Training certificates from recognised schemes help demonstrate competence, and certificates should be checked for validity;
- Pedestrians: should be instructed in safe pedestrian routes on site and the procedure for making drivers aware of their presence.
Inspection and maintenance
A programme of daily visual checks, regular inspections and servicing schedules should be established in accordance with the manufacturer’s instructions and the risks associated with each vehicle.
Drivers should be encouraged to report defects or problems. Reported problems should be put right quickly and the dumper taken out of service if the item is safety critical.
For clarification or more information, please contact us on 07896 016380 or at Fiona@eljay.co.uk, and we’ll be happy to help.
Contains public sector information published by the Health and Safety Executive and licensed under the Open Government Licence