In this month’s regular column with SHP, Fieldfisher collaborated with their colleagues at No.5 Chambers to discuss the recent sentencing of Openreach. Barrister Christopher Hopkins joins Fieldfisher’s Andrew Sanderson (Partner) and Krysteen Ormond (Associate) to examine the facts leading to the HSE’s prosecution.
Alun Owen. Credit: HSE
Alun Owen died aged 32 in October 2020. He was working for Openreach Limited (“Openreach“) on a customer’s telephone line in the village of Abergwyngregyn, near Bangor. In the days before, the River Aber had burst its banks and the village had been flooded . The water was still much higher and faster-flowing than usual.
The faulty telephone line in ran across the River Aber. Openreach engineers had been trying to repair the line over a period of two months, working both near and in the river.
On 6 October 2020, whilst called out to an issue with the faulty line, Mr Owen waded into the water at a point where it was only up to his calves, in an attempt to throw a new line across the river to the other riverbank.
He made his way across to an island in the middle of the river, where he taped a hammer to the new telephone cable and to throw it across to the other side. Whilst attempting to cross the remaining section of river, Mr Owen slipped in deeper water and was swept away. Tragically, Mr Owen drowned and his body was found that evening about 270 metres downstream from where he had first entered the water.
The Health and Safety Executive (the “HSE”) investigated with support from North Wales Police. The investigation found that, although Openreach did have policies in place for working near water, they had not been followed. There was no safe system of work in place for work on or near water and the HSE found that no engineer should have been working alone near the water. Mr
Krysteen Osmond, Associate at Fieldfisher
Owen and other Openreach engineers on the project had not received training, information or instruction on safe working on or near water.
Openreach was charged by HSE with one offence of breaching Section 2 (1) of the Health and Safety at work etc. Act 1974 and pleaded guilty on 5 June 2024 at Llandudno Magistrates Court. The company was fined £1.34 million and ordered to pay costs of £15,858.35.
Speaking after the sentence, HSE Inspector Christina Roberts said: “His death would have been preventable had an effective system for working on or near water been in place.
“Mr Owen should not have been put in the unsafe working situation. Companies should learn the lessons from this incident if they have staff who may work on or near water and be aware that HSE will not hesitate to take appropriate enforcement action against those that fall below the required standards.”
Openreach, at the hearing, conceded it “could have done more” to make sure its engineers had the right guidance, processes and training when working on, or near water.
Latest company accounts for Openreach state that it is a wholly owned subsidiary of British Telecommunications plc and an annual turnover of £1,980,056,000. No profit is declared after administration expenses.
Christopher Hopkins, Barrister at No.5 Chambers
Under the Sentencing Guidelines for health and safety offences, the fine imposed is close to the starting point of £1,300,000 suggested for large companies where the offence is found to have involved medium culpability with the highest category of harm risked (death). However, sentencing courts are also given a suggested range of between £800,000 to £3,250,000.
Christopher Hopkins noted, “Although specific details of how the fine in this case was reached have not been made public, the guidelines provide for fines to be increased for very large organisations with a turnover greatly exceeding £50,000,000, and also to be reduced by up to one third where an organisation pleads guilty. Factors increasing or reducing seriousness will also be considered as will the proportionality of any fine based on turnover to the overall financial means of the organisation.”
The case is a very stark example of the importance safe systems of work play in the workplace, and the devastating consequences of getting them wrong.
Andrew Sanderson, Partner at Fieldfisher
Regular auditing to ensure training is being conducted and learnings actioned: As above, it became clear that Openreach staff were not fully aware of the policies governing working near water. Regular audits by management to ensure that staff were being given appropriate training and follow-ups, as well as satisfying themselves that the outcomes of the training were being put to us, it not only best practice but could have identified the risks to Mr Owen and his colleagues before it was too late.
The death of Mr Owen reminds us once again of the dire consequences of health and safety compliance failures, for the organisation, the employees, their families and communities. The duties owed by an organisation extend beyond those imposed by law and regulation – there is the moral duty to ensure that all the rights steps are being taken to keep the workforce safe.
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Have Openreach, other infrastucture organisations learned the lessons? Hope they haven’t been waiting for the court case to conclude? When it takes this long to conclude a court case a simple thing to do before settling on fine and/or revisiting possibility of criminal charges would be for HSE or a well qualified Investigator to audit the Organisation on relevant aspects? Detailed point compared to policies, safe systems etc – Risk Assessment for job should have highlighted dangers?
Such a tragic accident highlights the importance of always remembering to have the basics in place: policies that are accessible, easy to read, and not hiding on an intranet system somewhere, together with the training , communication, risk assessment etc