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October 8, 2015

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Comment: Hugo Boss fined for fatal negligence

 

By Rozinah Shah

The phrase ‘Let the punishment fit the crime’ is often echoed without real consideration of the full facts, in many health and safety prosecutions I have known throughout my career the fines have almost been negligible in relation to the offence and the financial circumstances of the defendant.

Following health and safety investigations into a fatality by Cherwell District Council’s Public Protection Team, Oxford Crown Court Judge Peter Ross fined Hugo Boss UK Limited £1.1 million for offences under the Health and Safety at Work Act 1974 and a further £100,000 for offences under the Management of Health and Safety Work Regulations 1999.  The poor health and safety management led to the tragic death of four-year Austen Harrison who was crushed by an unsecured, seven foot, 18 stone three-way mirror within a Hugo Boss store at Bicester Village.

In passing sentencing the judge emphasised Hugo Boss Ltd’s failure to conduct their business in a manner ensuring persons not in their employment were not exposed to risks to their health and safety.  Failure to make and give effect to such arrangements for effective planning, organisation, control, monitoring and review of the preventative and protective measures for the shop resulted in a second charge.

One fact that was missing from the media following this case was that the 18-stone mirror had been designed by architects to be fitted to a reinforced wall with clear written specification and instructions.  Unfortunately this mirror was left simply balancing on the floor for a number of months until the fatal accident occurred.

As an environmental health practitioner I often get asked questions around the hazards, risk and use of equipment and my immediate reply is: “What do the instructions say? Is there a design brief?” It may seem a little odd to ask for something so simple and many would say it is common sense but in this case although they existed and would have controlled the risk they were not acted upon.

Investigations found that this was not an isolated incident in terms of mirrors falling or being in an insecure and dangerous state. Failure to heed previous warnings by employees and health and safety representatives along with the haste and commercial demands of opening up the store without proper planning contributed to a collection of aggravating factors which almost certainly contributed to the scale of the fine imposed by Judge Ross.

Throughout this investigation I have constantly questioned the importance placed on organisational health and safety culture, as an EHP we may serve notices in relation to imminent risk but are unable to use these powers to enforce a change in safety culture, something that is a constant challenge despite the obvious benefits.

The case highlighted extensive management failures at the store and above.  Judge Ross concluded that “the breach rose to the top of the company, not because of the absence of a health and safety system, but the failure to operate and manage that system and to secure appropriate compliance.  He further concluded that the company failed to give health and safety a proper profile at board level and the company lacked a culture of health and safety management”.

It is important to remember that shareholders have an obligation to hold directors responsible for their directorial duties which include health and safety.  It is not an excuse to form a “glass ceiling” that insulates the responsibilities of those at senior management level from those at local level.

Companies have a legal responsibility to their staff and customers to ensure that health and safety requirements are met to the legislative standards. It is not optional, nor is it negotiable. Hugo Boss UK Limited failed in that responsibility. Not only were these breaches systemic, they also reached the highest level of management.

So what about mitigating factors?

Hugo Boss had promptly accepted responsibility and publicly acknowledged the company’s failings.  A high level of cooperation followed the accident and genuine efforts to establish health and safety culture and to ensure that it is embedded within the organisation from top down is being addressed.  This accident was an incredibly tragic situation which resulted in the death of a young boy and no sentence imposed will ever replace the life that has been lost. However, it is important to ensure that what happened never happens again.

The biggest mistake an organisation can make, in my opinion, is to approach health and safety like an instruction booklet, many of which I have been handed during inspections to show documented compliance but which in reality lacks practical application.

It may be obvious that directors and senior management need to know the principles of safety in their organisation but they also need to accept that gaps between safety theory and what happens in practice do exist.

If anything, this case shows that those at senior level need to get back to the shop floor and listen and learn from those surrounding them.

It is anticipated that the Sentencing Council will issue new sentencing guidelines for corporate manslaughter and health and safety offences in early 2016 and sentences for such offences will be greatly increased.  In this case, whilst arguably insignificant in terms of the company’s turnover and profits, a total financial penalty of £1.2m for health and safety offences is extremely high and in this case one of the highest in Local Authority cases I’ve known to date and one that deserves to be highlighted.

The commercial drive of a company and the pressures of having to keep up with retail demands do not excuse in any way the health and safety responsibility to employees and customers.  I try not to advocate the bubble wrap approach to safety but one thing this case does demonstrate is that in high-end, low risk retail if you fail to manage your risks, the consequences can be severe.

Rozinah Shah EHP is Investigating Officer for Cherwell District Council

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Peter T
Peter T
6 years ago

I congratulate Rozinah Shah on a well written article making some very salient points. It is, however, let down by the misleading headline which further promulgates a common misapprehension held even at the highest levels of Government and is largely responsible for the “elfansafetygawnmad” stories driving the “Myth of the month”. Hugo Boss was not fined for “Fatal Negligence”, they were not even charged for it. If directors or “officers” of the company were individually negligent (and therefore outside of “vicarious liability”) they would have faced charges of “gross negligence manslaughter”. If there was no identifiable “directing mind” leading to… Read more »

KenD
KenD
6 years ago

I also congratulate Roxinah for a well written article, but I don’t have a problem with the headline. Why is worth looking at. The headline was “Hugo Boss fined for fatal negligence”. There is no doubt the article was about the designer clothing organisation commonly referred to as Hugo Boss, although that is almost certainly not the name of the legal entity that was prosecuted. The organisation was fined in court. That is a matter of record. The organisation was in court and was convicted and fined following a fatality. Those also are matters of fact. The fatality was caused… Read more »

Deb Negligence
Deb Negligence
6 years ago

I could not agree more. Health and safety whether it is for your customers or employees should always be put on top priority. Otherwise, the consequences can be terrible.