The recent, tragic case of a four year old boy who was killed in a shop when a freestanding mirror fell on him has once again underlined that very large companies can expect to receive very large fines for breaches of health and safety legislation.

Following the death, the shop owner, Hugo Boss (UK) Limited, was prosecuted by Cherwell District Council for, and pleaded guilty to, breaches of section 3 of the Health and Safety at Work, etc. Act 1974 and regulation 3 of the Management of Health and Safety at Work Regulations 1999.

At the subsequent sentencing hearing, Oxford Crown Court heard that the store in question at Bicester Village had been hastily refurbished during the summer of 2012 when the defendant took it over from another retailer with a lack of planning and proper specification.  Instructions for the 18 stone, seven-foot tall, three-way mirror in question were described before the court as being ill-defined and not followed through.  Consequently, whilst the mirror ought to have been secured to a reinforced wall, it was, in fact, left propped up against a stud wall in the changing room.  Judge Peter Ross  commented that it would have been obvious to the untrained eye that the mirror posed a risk and that it was “nothing short of a miracle” it had not fallen before.

It was noted that monthly health and safety checks were introduced into the defendant’s stores by 2000, but that these were not taking place at the store in question.  Furthermore, this was not an isolated incident: amongst numerous other health and safety incidents in the defendant’s other stores, there had been reports of a mirror falling in 2009 and of an unsecured mirror in 2010.  In mitigation, the defence made the court aware that steps had been taken to enforce health and safety checks, with particular emphasis on mirrors in their stores, to ensure that there could be no repeat of the incident.

The judge said that he thought that the failings in the defendant’s health and safety management were systematic and went to the very top of the company.  The judge took into account the “unimaginable” impact of the boy’s death upon his family as well as the enormous risk that the unsecured mirror posed to both customers and staff.  The court heard that, between 2011 and 2014, the defendant’s turnover rose from £124.8 million to £192.8 million, with profits increasing from £16.6 million to £23.8 million for the same period.  The judge imposed a fine of £1.1 million for the breach of section 3 of the 1974 Act and £100,000 for the breach of regulation 3 of the 1999 Regulations, and ordered the defendant to pay nearly £47,000 in costs.

This is the latest in a line of cases where the courts have shown their willingness to impose heavy fines on large businesses for health and safety offences.  The decision in the joined cases of R v Sellafield Limited and R v Network Rail Infrastructure Limited [2014] EWCA Crim 49 made it clear that fines for environmental and health and safety offences should be large enough to bring the message home to the shareholders, as well as the managers, of defendants which are found liable.  This trend is likely to continue after the Sentencing Council publishes its definitive guidance on sentencing for health and safety offences, corporate manslaughter and food safety and hygiene offences (anticipated by the end of 2015).

One of the key messages for businesses is the risk of being perceived by a court as having paid only lip service to health and safety management.  The judge noted that, at the time of the incident, Hugo Boss had a health and safety system, which, if it had been implemented properly with the appropriate training, management and compliance, would have prevented the incident.  From this, it is clear that it is simply not enough to view health and safety as a ‘tick box’ exercise which can be effectively placed to one side once the bare minimum administrative requirements have been achieved.  Good health and safety management is a cultural quality which permeates throughout the operations of well-run businesses.  The apparent absence of this culture at the defendant’s store was reflected by the judge’s comments that “[n]o-one at Hugo Boss UK Limited took the trouble to see if [the mirror] was properly installed”.

After the fine was handed down, Cherwell District Council’s lead member for public protection commented that:

“All companies have a legal responsibility to their staff and customers to ensure that every relevant health and safety requirement is met to the necessary standards. It is not optional, nor is it negotiable. Hugo Boss UK Limited failed in that responsibility and that has been recognised in today’s sentencing.”