Last week the Court of Appeal broke new ground by suggesting that fines imposed on companies responsible for death or injury on site were too low. Judgment issued following the F Howe & Son (Engineering) case has been greeted by safety and legal professionals as a major step towards reducing deaths and injuries in the workplace.
It recommends that in future fines must be large enough to bring home the importance of creating a safe environment for workers and the public. It also suggests that while fines should avoid the risk of causing bankruptcy, in certain cases offences may be 'so serious that the defendant ought not to be in business'.
The judgment also urges magistrates to refer cases involving serious breaches of health and safety law to higher courts where stiffer penalties can be meted out. Courts should bear in mind aggravating factors like offences resulting from a company's desire to make profits or failures when reaching a decision, it adds.
The guidance is likely to affect anyone prosecuted for an offence under the Health & Safety at Work Act. But it could hit hardest in the construction industry where average fines are relatively low.
The Health & Safety Commission's annual report shows that in 1993-94 average fines for the 415 convictions brought in the construction sector stood at 3,384. By 1997-98 this average had fallen to 3,173 from 533 convictions.
The figures contrast with the manufacturing sector, which saw the 1993- 94 average fine of 2,973 from 585 convictions rise to 5,895 from 432 by 1997-98. In the services sector, average fines of 3,939 from 217 convictions leapt to 5,726 from 212 convictions.
'Convictions in some construction cases are resulting in significant penalties - but these are the exception not the norm,' says HSE chief construction inspector Sandra Caldwell.
Alison Brown, a specialist in health and safety at law firm Cameron McKenna agrees. 'It is not my experience that construction firms get handed lower fines than in other industries,' she says. 'In fact in construction cases companies very often get enormous fines.'
But while Brown believes the judgment could be a signal for courts to take offences in the construction industry more seriously, she adds: 'We have got to wait to look at the statistics in one or two years time to see if it makes a difference.'
Gareth Watkins, head of the health and safety group at lawyer Nabarro Nathanson, also points out that statistics can be misleading, particularly, he says, when you bear in mind that it is only six years since the maximum fine that could be levied by magistrates for a breach of Act the was raised from 2,000 to 20,000.
But he adds: 'Certainly fines have not always been increased to reflect this rise in the past.'
Watkins' theory about the relatively low fines is that HSE could have become more active in pursuing cases across construction. This could have led to a relatively large number of minor cases being pursued compared to the number of more serious ones. This could in turn have dragged down the average for fines imposed.
'If HSE inspectors were being particularly vigilant and increasing the number of legal actions, it would be consistent that they may be bringing prosecutions for offences that they would not in other industries,' he explains.
He believes that the Court of Appeal judgment will lead to the referral of more cases from magistrates courts to higher courts where, in addition to unlimited fines, prison sentences can be handed down.
Although he is convinced that greater penalties will help to make construction a safer place, Watkins points out that at present construction is not being let off. 'It is not just a question of fines. The only two prison sentences imposed under health and safety legislation have been in construction cases.'