Whirlpool UK Appliances Ltd v R

When sentencing a health and safety offence, the Definitive Guideline requires a structured exercise of judgment, not an arithmetical calculation. Actual death, where the breach significantly caused it, will normally require a substantial increase from the risk-based harm category. A company whose turnover very greatly exceeds the large-organisation threshold may be sentenced outside the suggested range, but turnover must not be extrapolated mechanically or linearly.

The offender’s wider financial position belongs at Step Three. Profitability, assets and remuneration may inform whether the fine has a real economic impact and remains proportionate to overall means. Step Three adjusts the earlier assessment; it does not displace the findings on culpability, risk, actual harm and turnover.

Whirlpool UK Appliances Ltd pleaded guilty to an offence contrary to section 3(1) of the Health and Safety at Work Act 1974. A self-employed contractor died after a working platform was struck by an overhead conveyor at the company’s factory. The company’s failures concerned the absence of a job-specific risk assessment and method statement, and an insufficiently detailed permit-to-work process.

The Crown Court at Bristol imposed a fine of £700,000. The company appealed against sentence, contending that the judge had misapplied the Definitive Guideline. The central issues were the effect of a death, the treatment of a very large organisation, and the relevance of low profitability in a company with substantial turnover.

1. Appeal allowed. The fine of £700,000 was manifestly excessive. The court quashed it and substituted a fine of £300,000. The remaining orders were unaffected.

2. The Definitive Guideline required a structured assessment, but it was not to be applied mechanically. The court had to assess culpability, the seriousness and likelihood of the harm risked, the extent of exposure, actual harm, turnover, and aggravating and mitigating features. Broader financial health was not a Step Two factor. It was relevant at Step Three under the proportionality check required by section 164 of the Criminal Justice Act 2003.

3. The offence was correctly categorised as low culpability and harm category 3 because, although death or serious injury was risked, the likelihood of harm was low. Death was nevertheless the most serious actual harm and the systemic failures were a significant cause of it. That justified moving substantially upwards, ordinarily to the top of the next harm-category range for an organisation at the large-organisation threshold.

4. The appellant’s turnover of about £700 million made it a very large organisation. Consistently with R v Thames Water Utilities Limited [2015] EWCA Crim 960 and R v Tata Steel UK Limited [2017] EWCA Crim 704, there was no fixed boundary and no linear multiplication of the large-organisation figures. A proportionate Step Two starting point was £500,000, reduced to £450,000 for the exceptional mitigation.

5. At Step Three, the company’s exceptional recent loss did not justify a further reduction. It had underlying profitability, assets of about £550 million, and directors’ remuneration unaffected by the loss. A £450,000 pre-plea fine would have a real economic impact while remaining proportionate. Applying the one-third guilty-plea reduction produced £300,000.

• Court of Appeal (Criminal Division). Allowed the sentence appeal, quashed the £700,000 fine, and substituted a £300,000 fine: [2017] EWCA Crim 2186.

• Bristol Crown Court. On 21 March 2017, following the company’s guilty plea to an offence under section 3(1) of the Health and Safety at Work Act 1974, imposed a fine of £700,000.