Tougher fine regime chosen for waste offence that ended in employee's death
Maria Cull, from law firm Herbert Smith, analyses recent court rulings relating to industry and the environment
The site at which the accident occurred is a plant that treats a wide range of industrial wastes through a process involving the mixing and neutralisation of acids and alkalis.
The tragedy took place when the wrong substances were combined in a mixing tank, resulting in the creation of hydrogen sulphide. The gas escaped from a corroded lid on the tank.
This case illustrates the gap between penalties imposed under health and safety and environmental laws. Although the Health & Safety Executive and the Environment Agency both investigated the case, charges were brought under the Health and Safety at Work Act for failure to ensure the health, safety and welfare of employees. A prosecution could have been brought under the Environmental Protection Act for treating waste in a manner likely to cause harm to human health. However, penalties under health and safety laws are more severe than those under environmental law and so the Health & Safety Executive took the case to court.
The Agency did not prosecute separately as there would have been a risk of the company being prosecuted twice for the same offence - a breach of the double jeopardy rules.
It is possible that the implementation of the recent European Council decision (see European Alert p16) requiring the criminalisation of intentional or negligent crimes will result in higher penalties being imposed under environmental laws for incidents like these, that result in death or serious injury and which could be avoided if the duty of care owed to employees is performed correctly.
Since tough penalties are already implemented under health and safety laws for incidents involving death or serious injury, there is an existing precedent for higher fines where activities result in personal injury.
The introduction of the Council's decision may make it more difficult to justify the imposition of the current low penalties under environmental law. The possibility of applying a duty of care type approach to other activities regulated under environmental laws may also help to reduce the number of tragic accidents that occur in industry each year.