Extraordinary case shows the impact of sentencing penalties

Roz Sanderson

In an extraordinary case, a Burger King franchisee has received fines totalling £166,600 for two identical breaches, with one fine totalling £153,360 and the other totalling £13,300.

Due to the introduction of the sentencing penalties, the two fines are so different in value because one breach relates to an offence on, or after, March 12 2015 and carries an unlimited fine, and the second breach relates to before March 12 2015 and carries a maximum fine of £20,000.

The case

KFG Quickserve Limited, which runs 80 food outlets including 35 Burger Kings, was sentenced in December 2016 after a 21-year-old employee was scalded with boiling oil in March 2015.

Michael Firth was tasked with emptying oil from three of the branch’s four fat fryers on 28 March 2015.

This involved emptying oil into an open bucket before carrying each load up some metal and concrete stairs and outside to the disposal area.

The metal bucket used to carry the fat from the fryer

While carrying the oil in a metal bucket up some stairs he spilled oil on his feet, scalding himself and dropping the bucket.

Environmental Health Officer, Rosemary Naylor, investigated the case and found that:

• the oil was transferred whilst hot rather than waiting until it had cooled to  below 40C;
• the metal bucket should have had a lid, but didn’t;
• the PPE provided was so large that staff could not safely use it so it was not effective;
• No site specific risk assessment had been recorded identifying extra hazards such as the need to transport oil in buckets via metal steps; and
• Clear and freely available HSE guidance was not followed.

District Judge Celia Dawson said that other staff were put at risk by the oil on the stairs when they rushed to Mr Firth’s aid.

As a result of the scalding injuries, Mr Firth was off work for more than a month and was left with scarring. He received a civil payment for his injuries from KFG Quickserve.

Ipswich BC prosecuted for two breaches of Section 2(1) of the Health and Safety at Work Etc. Act 1974. Mr Nigel Burrows stated “ we prosecuted because of the serious nature of the incident, Mr Firth’s injuries were serious but could have been much worse. This incident was entirely preventable if the employer had carried out a specific risk assessment and followed sensible procedures that would have cost virtually nothing to implement”.

The impact of the sentencing penalties

Due to a legal technicality, the company was charged twice with breaching section 2(1) of the Health and Safety at Work Etc. Act 1974.

The 12th March is a pivotal date for this case – as offences committed on or after that date could be imposed an unlimited fine by a magistrates’ court, where before they were limited to £20,000.

An unlimited fine was always available for these offences in the crown court.

The fine for breaching section 2(1) of the Health and Safety at Work etc. Act 1974 before 12 March 2015, and pre-sentencing penalties, was £13,300.

The fine for breaching section 2(1) of the Health and Safety at Work etc. Act 1974 after 12 March 2015, and post-sentencing penalties, was £153,360.

The difference in fines levelled – for the same continuing offence – is of real significance as it showcases the vast changes that the sentencing penalties have brought to those committing health and safety breaches when being sentenced in a magistrates’ court.

Ipswich Borough Council’s Alasdair Ross, the Councillor in charge of public protection, said: “This was a very serious case that could so easily have been avoided. The Council is pleased that the court handed out such a significant fine as it will help to get the message out that other companies should take all the necessary precautions to keep their staff safe in the workplace.”

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