Environmental Tyre Disposals Ltd, R. v

An employer’s responsibility for an employee’s safety remains material when the employee is made available to assist another company. A third party’s positive creation of risk does not reduce the employer’s culpability where proper supervision and instruction would have prevented known unsafe work.

The appropriate fine for an offence under the Health and Safety at Work Act 1974 is a case-specific assessment. Earlier sentencing decisions may identify a broad spectrum, but do not provide a scale from which a sentence can readily be extrapolated. The fine must reflect the seriousness and consequences of the breach, while taking account of the offender’s financial position.

The applicant company pleaded guilty in the City of London Magistrates’ Court to failing in its duty as an employer under section 2(1) of the Health and Safety at Work Act 1974. It was committed to the Crown Court for sentence.

Its employee, who had received no training or instruction in using a loader, was made available to assist Midco Waste Management Ltd with tyre shredding. He used the loader, which overturned and caused his death. The sentencing judge treated the two companies as equally blameworthy and imposed a fine of £70,000, compensation and prosecution costs.

After a single judge refused leave, the company renewed its application to appeal against sentence. It contended that Midco was more culpable and that the fine was excessive by comparison with other cases and in light of its finances.

1. The renewed application for leave to appeal against sentence was refused.

2. The judge was entitled to regard the applicant and Midco as equally blameworthy. Midco may have created the immediate situation in which the employee used the loader. However, the applicant remained responsible as employer for ensuring his safety while he assisted Midco. Proper supervision and instruction would have revealed that he had previously driven the loader and would have prevented a repetition.

3. The fine of £70,000 was properly assessed as a substantial penalty for a serious breach of section 2(1) of the Health and Safety at Work Act 1974 which resulted in death. Sentencing comparisons could identify a spectrum of seriousness, but could not yield a reliable scale for fixing the fine in a different case. The assessment was for the sentencing judge.

4. The company’s financial position did not justify intervention. Although smaller than Midco and not making substantial profits, it had annual turnover exceeding £2 million. Its figures disclosed no special circumstance warranting departure from the fine assessed as appropriate for its defaults.

• Court of Appeal (Criminal Division): The company’s renewed application for leave to appeal against sentence was refused: [2005] EWCA Crim 2687.
• Central Criminal Court: On 30 March 2005, Judge Stephens QC fined the company £70,000, ordered £4,996 compensation and £14,991.50 prosecution costs.
• City of London Magistrates’ Court: On 11 November 2004, the company pleaded guilty to the health and safety offence and was committed for sentence.