Sentencing guidelines: How Tata Steel successfully appealed £1.98m fine

Angela Southall, Co-Founder, Southalls, discusses the implications of the Court of Appeal’s decision last month to reduce Tata Steel UK’s £1.98m fine by a quarter. The steelmaker appealed its conviction for two separate sentences after two workers’ hands were trapped in unguarded machinery.

The appeal is significant, since it is the first to have achieved a reduction in fine due to likelihood-of-harm under the ‘new’ sentencing guidelines – introduced in 2016.

Three appeal court judges, headed by Lord Justice Gross, ruled on 7 June 2017 the categorisation of the likelihood-of-harm for the steelmaker’s second offence under the sentencing guidelines issued to judges should have been medium and not high, as was originally judged.

The appeal court reduced the fine for that offence to £1.3m from £1.8m, bringing the revised total penalty down to £1.5m.

The Case

In September 2014, a 26-year-old employee lost most of his left hand clearing a blockage on a steel tube manufacturing line. The guarding was removed and the power not isolated to the machine during this process. The Health and Safety Executive (HSE) served an Improvement Notice and the guarding was upgraded.

The manufacturing line had operated for around 13,000 hours without an incident, but the HSE served the steel maker with an improvement notice on 18 December 2014, requiring Tata Steel UK to check all its production lines at its Corby site, and to ensure that all identified preventive and protective devices were in place and effective.

Tata Steel UK had taken measures to update and improve guarding, but five months later on the 19th February 2015, a 52-year-old team leader’s left hand was caught in an inadequately guarded machine during refresher training, severing the little finger on his left hand.  A prosecution then followed.

The New Sentencing Guidelines

The sentencing guidelines came into effect in February 2016 to provide a framework for penalties for workplace health and safety breaches.

The aim was to achieve more consistent penalties, to ensure fines for larger organisations reflected in their incomes adequately, and to bring it in-line with the regime for environmental crime.

Using the ‘new’ sentencing guidelines the judge in the Court of Appeal applied a formula to set the penalty:

1. Culpability Rating – low, medium, high or very high.
2. Harm rating – Likelihood the safety failing would lead to harm and how bad that harm would have been (minor injuries through to death). How many people were exposed to that risk of harm and whether the safety failing was a significant cause of actual harm.

In their first six months, the guidelines have resulted in as many penalties of £1m or more as there were in the previous two decades.

These new guidelines in effect have a far greater impact on compliance with health and safety law than any single piece of regulation in the past 20 years.

The Appeal

This is the first case the Court of Appeal has reduced a finding in relation to ‘likelihood’ under the sentencing guideline.

Lord Justice Gross had taken into account that there had only been a single previous incident; that the machinery had been operated for around 150,000 hours without an incident and that the accident had occurred during training rather than normal operations.

While none of this detracts from the high culpability of the accident, it does tell against the high likelihood-of-harm characterisation from the first judgement.

Consideration of the wider setting

This case is significant therefore, as it could potentially be cited by defence lawyers to a Crown Court or district judge in the future, to demonstrate ‘the importance of considering the wider setting in reaching a determination as to the likelihood of a particular harm arising.’ Thereby bringing a reduction in the overall fine received in the event of a prosecution.

Risk Assessment

Despite the reduction in fine, none of this detracts from the fact that Tata Steel UK was highly culpable in this case. These incidents could have been avoided with simple health and safety precautions.

It therefore highlights once again, the need for guarding on dangerous machinery and most importantly, thorough risk assessments not only for day-to-day use, but the less frequent but equally hazardous tasks of machinery cleaning, maintenance and blockage removal.

As in this case, the first accident arose from removal of guarding to clear a blockage.

The HSE prosecution underlines the importance of good workplace health and safety practice, reminding not only the steel industry, but all manufacturers that they will be held accountable for not fulfilling their obligations.

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In this episode of the Safety & Health Podcast, we hear from Matt Birtles, Principal Ergonomics Consultant at HSE’s Science and Research Centre, about the different approaches to managing the risks associated with Musculoskeletal disorders.

Matt, an ergonomics and human factors expert, shares his thoughts on why MSDs are important, the various prevalent rates across the UK, what you can do within your own organisation and the Risk Management process surrounding MSD’s.

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