Company receives an 85% reduction in the fine imposed against them

United KingdomScotland

Electricity North West Ltd (‘the company’) was found guilty of breaching regulation 4(1) of the Work at Height Regulations 2005 (‘WAHR 2005’) (count 2). They were acquitted of breaching regulation 3(1) of the Management of Health & Safety at Work Regulations 1999 (count 1) and also s2(1) of the Health & Safety at Work Act 1974 (count 3). They were fined £900,000 and appealed against conviction and sentence.

The company owns, operates and maintains the electricity distribution network in the north-west of England. The three counts on the indictment resulted from an investigation into a fatality that occurred on 22 November 2013, when a linesman employed by the company, fell from height while clearing ivy from a vertical wooden pole. Whilst carrying out the work, he was held in place by a work positioning belt, which was designed to allow him to lean back and work at height, but was not designed to arrest a fall. The equipment that was designed to arrest a fall was a fall-arrest lanyard, and the worker was not wearing one. As he cleared the vegetation with a handsaw, he cut through his belt and fell, sustaining fatal injuries. The work ought to have been carried out from a Mobile Elevated Work Platform (‘MEWP’) or a ladder. On the day in question, the MEWP was being used elsewhere.

The company was convicted for being in breach of regulation 4(1) WAHR 2005 as they failed to ensure that work at height carried out by a linesman was properly planned, appropriately supervised, or carried out in a manner which was so far as reasonably practicable safe. The Judge held there had not been proper plans as the regulations require the work at height to be properly planned irrespective of whether there was a foreseeable risk of harm.

The company appealed against the conviction on two grounds: firstly, in the light of the acquittals on counts 1 and 3, the only factual basis for the conviction on count 2 could be one that did not give rise to any material risk, and such a shortcoming could not constitute a breach of regulation 4(1) of WAHR 2005. Second, and linked to the first ground, the conviction on count 2 was logically inconsistent with the acquittals on counts 1 and 3.

The company also argued that the size of the fine bore no relation to the seriousness of the count 2 offence, in terms of culpability and harm, and in the light of the acquittals on counts 1 and 3, and that it was manifestly excessive.

Giving the judgement of the court, Lord Justice Simon accepted the appellants’ submissions on culpability and found that the appropriate starting point was on the cusp between “low” and “medium” culpability.

The result was that the starting point was too high. It was also held there had been error in approaching the issue of sentencing on the basis that, because the company was a ‘very large’ organisation, he was required to make an upward adjustment to the sentence. In fact, it was not necessary to increase the fine in order to achieve a proportionate sentence. In short, the sentence was out of proportion to the shortcoming the Judge had identified.

The correct applications of the Sentencing Guidelines was on the basis that the seriousness of harm risked was at level A, because of the inherent nature of working at heights if no proper plan was in place; but there was, on the facts of the case, a low likelihood of harm. The Judge concluded that there was high culpability because the company allowed the breaches of WAHR 2005 to subsist over a long period of time. However, the failure was not comparable to the other factors indicating conduct or omission which falls ‘far short of the appropriate standards’ such as to justify a finding of ‘high culpability’. In light of the jury’s verdicts, the company had been convicted of an offence which was properly characterised as an offence of between low and medium culpability.

On the basis of offending on the cusp of low and medium culpability, and harm category 3, the Guidelines that apply to a large organisation indicate a starting point of between £35,000 (low culpability) and £300,000 (medium culpability).

The fine was therefore reduced from £900,000 to £135,000.

View the full judgement here.