SML expertise reduces fine by over £2m in court case

Following an HSE investigation into an accident to an experienced maintenance fitter, a metalworking manufacturer was charged with a breach of section 2 of the Health and Safety at Work Act; ensuring, so far as is reasonably practicable, the health, safety and welfare at work of all employees.

The accident arose as the experienced maintenance fitter chose to use emery tape to clean a steel rod in a centre lathe. This technique was widespread and accepted practice when the fitter did his mechanical apprenticeship. During the 1990s the technique was put under increasing scrutiny to justify it use and in 2015 the HSE effectively prohibited use of handheld emery tape on centre lathes when they revised their guidance on the subject.

SML were initially asked to provide Expert Witness services to the legal team advising the Company who were considering defending the charge. Our expert evidence assisted the Company in concluding that defending the charge would not be possible.

Following the Company’s guilty plea, the HSE advocated to the sentencing court that the matter should be treated extremely seriously and that the starting point for the fine should be £2.4 million. This was based on the supposition that the Company were highly culpable, the risk of injury was high, more than one employee was exposed, and harm had actually occurred.

Highly skilled mitigation advocacy, supported by further evidence from SML, persuaded the Court that whilst there was a high degree of culpability the risk was only medium and that the harm category with the sentencing guidelines should be set at harm category three (rather than one). The starting point for this fine is £540,000. After considering the effects of the current economic crisis on the company, and applying the discount for an early guilty plea, the judge fined the Company £350,000 plus costs.

Some of the principal lessons that others should take from this accident and prosecution are:-

• Ensure you keep up-to-date knowledge of HSE guidance and when standards change ensure that management, supervisors and employees are made aware of the change. The Company were unaware of the 2015 change in guidance on using emery cloth.
• Ensure that when employees are given instruction and training it is recorded preferably with an employee’s signature of acceptance. The Company had displayed the earlier version of HSE guidance relating to the use of emery cloth on lathes but no formal training or instruction on its implications were made or at least recorded as being made.
• Ensure that Management is aware of the actual methods of work being used by employees are. The Company and its Management were unaware that employees were continuing to use emery tape on lathes if only rarely. Supervisors were aware, and the HSE investigation revealed amongst maintenance fitters most used the technique if only rarely.