Anomalies in sentencing for fire safety breaches create uncertainty

Retailer Poundstretcher was fined £1 million for multiple breaches of the Health and Safety at Work Act (HSWA) related to fire safety just before Christmas. However, just a few months previously, JD Sports was fined £60,000 on conviction for six breaches of the Regulatory Reform (Fire Safety) Order 2005, in a case where the facts were remarkably similar.

Although the inclusion of fire safety offences was suggested while the health and safety sentencing guideline was being developed, the Sentencing Council ultimately felt that "applying the factors in the guideline to offences involving risk of fire had the potential for distorting sentence levels". There has been some debate, but little clarity, on why this should be the case, and such offences remain without formal sentencing guidelines, leading to potential discrepancies. One reason put forward is that a breach of the requirements of the Fire Safety Order is only an offence if it puts relevant persons at risk of serious harm or death. This is different to HSWA offences which only require the risk to be of material harm. Therefore all fire offences, if they came under the current sentencing guidelines, would immediately fall into the highest category of harm.

The Sentencing Council has noted the appetite for guidance on the sentencing of fire safety and other offences not so far covered by the guideline, so whether this will change in the face of recent publicity of the consequences of fire safety breaches remains to be seen. In the meantime, companies should be aware of the trend towards increasing fines for the most egregious breaches of health and safety law, even if those breaches do not result in actual harm.

In both the Poundstretcher and JD Sports cases, the breaches took place over the busy Christmas period. While retailers can be under pressure during these busy periods to ensure that they have sufficient stock to meet customer demand, obligations in relation to health and safety are not relaxed. The requirement to minimise the risk of harm to staff and customers remains.

The Poundstretcher sentencing

Poundstretcher was charged with 24 counts of breaching the HSWA, following prosecution by three local authorities: Swindon, West Berkshire and Lewes. Each of these breaches related to the way the company operated its stocking of stores, including failing to keep aisles and walkways clear of obstruction and blocking fire exits; and its failure to properly train staff, including young seasonal staff.

On conviction, the sentencing judge arrived at a fine of £1m following the Sentencing Council Guideline for health and safety offences, corporate manslaughter and food safety and hygiene offences. The judge considered that the offences in each authority fell broadly into two categories: overstocking and related issues; and inadequate training and protection for individuals.

Poundstretcher attempted to blame local management for the failings in these cases, but its argument was branded "deeply unattractive" and "circuitous" by Judge Hetherington in sentencing. The judge said that it was "part of higher management's function to see to it that local management is in place and performing to a proper standard" – essentially, the buck stops with senior management.

Although the company had some health and safety policies in place, these were not followed or not known about by on-site staff. Policies are of no worth if not adhered to: proper communication and staff training is essential.

For sentencing purposes, it was also relevant that Poundstretcher had been prosecuted for similar offences in the past, and that improvement notices were issued by the local authorities in this case and apparently ignored. Louise Doughty, service manager for health compliance at Swindon Borough Council, said that the company had shown "a consistent lack of care for its employees and the public", and that the continued reoccurrence of prohibition notices and improvement notices for the same issues "indicated that there was a serious risk of harm or serious injury to those working in the company's premises".

The judge also took into account the "complacent attitude" shown by senior management, "highlighted by the way in which senior management, often at director or company secretary level, dealt with requests for interview by enforcing authorities". The company "may have been entitled not to co-operate" as a matter of strict law, but its "consistent failure properly to engage with and answer questions spoke volumes as to the company's attitude towards the role of the enforcing authorities".

Given the level and frequency of offending, and the potential for harm to both staff and customers, the fines in this case, although high, reflect the formula used in the guideline and its aim to send a message to organisations and their shareholders that ignoring health and safety obligations does not pay. Poundstretcher's latest accounts reveal a turnover of approximately £400m, so the £1m fine also reflects the trend for increasingly large fines for large and very large organisations.

The case is also a reminder to employers to ensure that even seasonal staff are aware of company health and safety policies and are well versed in procedures and practices. Effective training must be given to all workers, and compliance and observation encouraged throughout the organisation's culture. Simply having written policies is not enough if the reality is that they are not observed, as this case shows. If anything, the prosecution may try to persuade that this scenario may be an aggravating factor, demonstrating a poor health and safety record, leading to a higher fine.

The local authorities' inspections of Poundstretcher came after a whistleblower alerted one of the councils involved. Employers should put procedures in place to support potential whistleblowers, and should listen to and act on any concerns raised. The alternative may be a hefty fine.

Kevin Bridges is a health and safety law expert at Pinsent Masons, the law firm behind Out-Law.com.