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Updating Sentencing Guidelines

Addressing common compliance issues in the workplace

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Since the introduction of the Sentencing Council’s guidelines on health and safety offences, corporate manslaughter and food safety and hygiene offences in February 2016, there has been a spate of prosecutions and increasingly high financial penalties hitting businesses across England, Wales and 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 obligations have been in place for more than ten years.

In the wake of 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 in across the board 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 £1million – 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.

Particular issues with noise and vibration

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, placing 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 have 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) have not shown such a consistent decline.

In fact, HSE has identified that VWF continues to be the most commonly prescribed disease under the Industrial Injuries Disability Benefit scheme over the last ten years.

According to the most recent report by the European Agency for Health and Safety at Work, the proportion of the workforce exposed to vibration varies widely between countries, from 14 per cent to 34 per cent, and is predominantly concentrated in the sectors of construction (63 per cent), manufacture and mining (44 per cent) and agriculture and fishing (38 per cent). In Britain alone, the Health and Safety Executive state that there have been a total of 7,520 new claims of Vibration White Finger in the years 2006 to 2015.

Over exposure to high levels of hand-arm vibration can lead to permanent disability of operators who handle vibratory tools. Hand-Arm Vibration Syndrome is a collective term consisting of vascular, nervous, muscular and other tissue disorders of the hand and forearm.

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 District Council grounds maintenance worker had been left with permanent injuries after prolonged use of powered equipment, including mowers and hedge cutters. For failing to educate their employees of the potential risks and implement health surveillance, the employer was fined £250,000 plus costs.

How to ensure 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 is essential for the employer to identify the signs and symptoms of the effects of HAVS, specifically Vibration White Finger, at an early stage. This should enable the appropriate action to be taken to reduce the number of people affected, but more importantly to prevent the problem becoming worse. Symptoms are likely to worsen with continued exposure to vibration and ultimately may become permanent. Any employees that are regularly exposed to high vibration levels or have been diagnosed with a HAV-related disease should be put on a health surveillance programme.

It is an employer’s duty to establish which staff are likely to be at risk from hand-arm vibration and, following this, to assess and manage the risks. An exposure assessment, which must be carried out by a competent person, should consider the vibration magnitude of the tools used and the respective daily exposure periods. If employees are found to be at significant risk, an action plan must be developed in order to reduce risks to As Low As Reasonably Practicable (ALARP).

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 the 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.

It can be overwhelming for companies to manage this process, which is why as a global leader in Testing, Inspection and Certification (TIC) services, Bureau Veritas has the experience, knowhow and professional expertise to help companies reduce risk and build a responsible, safe and sustainable business. Bureau Veritas has a specialist Acoustics and Vibration Group that offers a full scale of consultative services to a wide range of clients across varied industry sectors; with the common goal of achieving compliance with legislation and best practice. These experts can provide specialist help with regards to assessing the exposures and risks from vibration and noise in the workplace, from conducting full risk assessments on site to recommending and implementing a noise control engineering strategy. Assessments are carried out in accordance with CoVAWR and CoNAWR and provide suitable recommendations and advice as to how to reduce noise and vibration levels in the workplace to as low as reasonably practicable and identify at risk personnel, and advise on the best methods to remove or minimise that risk. This can take place at an individual business site or across a business’s portfolio of sites.

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Richard Cope has over 20 years of consultancy experience in the environmental, and health and safety sectors. He holds the Institute of Acoustics (IoA) diploma in Acoustics and Noise Control and as well as the IoA Certificate of Competence in Environmental Noi...
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