Employment law advisers in Bristol, and in the whole of the United Kingdom, should be aware of the decision of the Scottish High Court in the case of HM Advocate v Discovery Homes Ltd 2010 SLT 1096.
The facts, in summary, were that D Ltd, a building company, was fined £5000 for a breach of section 2 of the Health and Safety at Work, etc., Act 1974 for failing to ensure the health and safety of employees. P, a director of the company, was fined £4000 under section 37 of the Act. D Ltd had failed to provide a barrier of adequate strength around a smoke extraction shaft. An employee fell down the shaft and suffered fatal injuries. P was exceptionally underqualified to supervise a large building project. At first instance, the court ruled that to impose a large fine on D Ltd would put the company into liquidation.
The prosecution appealed on the ground that the fines were unduly lenient.
The Scottish court ruled that the appeal would be allowed in respect of D Ltd, and a fine of £40,000 substituted.
The appeal was refused in respect of P.
The court below had been entitled to take the view that the circumstances would not be such as to make D Ltd insolvent. However, it had failed to appreciate that there was a mechaism whereby D Ltd could meet a more substantial fine by diverting a proportion of P’s dividend. Further, it was possible for D Ltd to raise funds from other sources.
The appropriate starting point for a fine in D Ltd’s case was £60,000. A discount of one-third would be applied to take account of the defenfants’ guilty pleas.
P’s fine was not unduly lenient. His source of income was likely to be restricted to allow d Ltd to meet the increased fine. P might be required to access alternative funds to meet his commitments.
Where a company intended to place financial material before a sentencing judge, it should do so in such a way which allowed the completeness and implications of the material to be adequately tested and explored before the sentencing court.
Advice may be sought from employment lawyers on the level of fines in cases involving health and saftey offences. The decision in this case should be brought to the attention of clients seeking such advice.
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