Clive Dalley, a self-employed alarm and telecommunications contractor, died on the premises of Whirlpool UK Appliances Ltd ("the Appellant") on 21 March 2015. Mr Dalley was working on the fire and heat detector systems from a mobile elevated platform when an overhead conveyor system destabilised the platform causing it to topple and Mr Dalley to suffer a fatal fall.
Sentencing Hearing on 21 March 2017
On 21 March 2017, Bristol Crown Court imposed a sentence of £700,000 following a guilty plea to an offence contrary to section 3(1) of the Health and Safety Act at Work Act 1974.
The Crown Court Judge determined that Whirlpool fell within Harm Category 3 and the seriousness of harm risked was Level A. With a turnover of approximately £700 million, the Judge placed the company above the £50 million 'large organisation' threshold and applied a starting point for the fine of £1.2 million. This was reduced to reflect the early guilty plea entered and mitigating factors.
This sentence was appealed and came before Lord Chief Justice Burnett at the Court of Appeal on 20 December 2017.
The appeal was on the basis that the Judge had erred when applying the Sentencing Guidelines ('the Guidelines'), submitting that the fine imposed upon them was extremely excessive given the facts of the case.
The two principal criticisms were:
• The starting point of £1.2 million was too high
• The judge failed to consider whether the proposed fine based upon turnover was proportionate to the overall means of the offender.
Was the starting point too high?
In comparison to the starting point of £1.2 million applied by the Crown Court Judge, the Court of Appeal found that the appropriate starting point here was one of £250,000 which was adjusted to £500,000 to taking into account the turnover of the Appellant.
Whilst the Court agreed that Whirlpool was a 'very large organisation', it made it clear that that the Guidelines still retain the flexibility to meet the individual circumstances by suggesting that it "may", not "will", be necessary to move outside of the range for organisations of this size.
The Court recognised that whilst there is a five-fold difference between the smallest and largest organisations falling within both the "small" and "medium" categories, the Guidelines do not apply the same arithmetic approach to define the boundary between a large and a very large organisation. The Court reminded itself of the approach taken in R v Thames Water Utilities Limited in that there should not be a "mechanistic extrapolation for levels for large companies".
Was the fine proportionate to the overall means of the offender?
The Court held that the Crown Court judge had failed to consider the financial circumstances of the offender and to ensure that the fine reflects the seriousness of the offence (Step 3 of the Guidelines).
The Court noted that "an organisation with a consistent recent history of losses is likely to be treated differently from one with consistent profitability" and that an organisation where the directors and senior management are well paid when compared to turnover is likely to attract a higher penalty than one where the converse is the case.
However, having regard to the overall means of the Appellant, the Court said that the Appellant had an "underlying profitability" and did not consider that the figure required adjustment.
The starting figure of £500,000 was reduced to £450,000 to take into account the Appellant's mitigating factors. The fine was further reduced to £300,000 to take account of the early guilty plea.
In summing up, the Court made it clear that enquiries into the facts when assessing harm and culpability must always be explored as no two health and safety cases are the same.