September, 2024 | Ashbrooke Management Consultants

21 September 202421 September 2024

Dangerous machinery leads to fine

A North London food manufacturer has been fined £150,000 for failing to prevent access to dangerous machinery.

The failings came to light following a routine inspection by Britain’s workplace regulator – the Health and Safety Executive (HSE) in October 2023.

During the visit to Wembley-based Oriental Delight (UK) Limited, the HSE inspector identified multiple failings related to the guarding of machinery. Three machines were deemed unsafe due to interlocking safety devices being defeated and guards being completely removed.

However, it was not the first time the food company had come onto HSE’s radar, with prohibition notices being issued in both 2016 and 2019.

Identical dangerous machinery failings were again found at the inspection in October 2023, demonstrating that the company had not only failed to sustain improvements, but had effectively ignored the HSE’s previous enforcement action by continuing to use these machines in an unsafe manner.

On 4 September 2024, at Westminster Magistrates’ Court, Oriental Delight (UK) Limited pleaded guilty to three breaches of Regulation 11(1) of The Provision and Use of Work Equipment Regulations 1998 and was fined £150,000 and ordered to pay costs of £3,020.

Following the hearing, HSE Inspector Marcus Pope said:

“This case sends out a clear message to the food manufacturing industry that HSE will not hesitate to prosecute when inspectors find serious health and safety failings, particularly when previous enforcement and advice has been provided. Once again, we see how critical it is that all employers make sure they properly assess and apply effective control measures to minimise the risk from dangerous parts of machinery.”

Dangerous machinery regulation

The Provision and Use of Work Equipment Regulations 1998, often abbreviated to PUWER, place duties on people and companies who own, operate or have control over work equipment aimed at preventing dangerous machinery. PUWER also places responsibilities on businesses and organisations whose employees use work equipment, whether owned by them or not. PUWER requires that equipment provided for use at work is:

suitable for the intended use
safe for use, maintained in a safe condition and inspected to ensure it is correctly installed and does not subsequently deteriorate
used only by people who have received adequate information, instruction and training
accompanied by suitable health and safety measures, such as protective devices and controls. These will normally include guarding, emergency stop devices, adequate means of isolation from sources of energy, clearly visible markings and warning devices
used in accordance with specific requirements, for mobile work equipment and power presses

Some work equipment is subject to other health and safety legislation in addition to PUWER. For example, lifting equipment must also meet the requirements of the Lifting Operations and Lifting Equipment Regulations 1998 (LOLER), pressure equipment must meet the Pressure Systems Safety Regulations 2000 and personal protective equipment must meet the Personal Protective Equipment at Work Regulations 1992 (PPE).

If your business or organisation uses work equipment or is involved in providing work equipment for others to use (e.g. for hire), you must manage the risks from that equipment and ensure no dangerous machinery is used. This means you must:

ensure the equipment is constructed or adapted to be suitable for the purpose it is used or provided for
take account of the working conditions and health and safety risks in the workplace when selecting work equipment
ensure work equipment is only used for suitable purposes
ensure work equipment is maintained in an efficient state, in efficient working order and in good repair
where a machine has a maintenance log, keep this up to date
where the safety of work equipment depends on the manner of installation, it must be inspected after installation and before being put into use
where work equipment is exposed to deteriorating conditions liable to result in dangerous situations, it must be inspected to ensure faults are detected in good time so the risk to health and safety is managed
ensure that all people using, supervising or managing the use of work equipment are provided with adequate, clear health and safety information. This will include, where necessary, written instructions on its use and suitable equipment markings and warnings
ensure that all people who use, supervise or manage the use of work equipment have received adequate training, which should include the correct use of the equipment, the risks that may arise from its use and the precautions to take
where the use of work equipment is likely to involve a specific risk to health and safety (eg woodworking machinery), ensure that the use of the equipment is restricted to those people trained and appointed to use it
take effective measures to prevent access to dangerous parts of machinery. This will normally be by fixed guarding but where routine access is needed, interlocked guards (sometimes with guard locking) may be needed to stop the movement of dangerous machinery before a person can reach the danger zone. Where this is not possible, such as with the blade of a circular saw, it must be protected as far as possible and a safe system of work used. These protective measures should follow the hierarchy laid down in PUWER regulation 11(2) and the PUWER Approved Code of Practice and guidance or, for woodworking machinery, the Safe use of woodworking machinery: Approved Code of Practice and guidance
take measures to prevent or control the risks to people from parts and substances falling or being ejected from work equipment, or the rupture or disintegration of work equipment
ensure that the risks from very hot or cold temperatures from the work equipment or the material being processed or used are managed to prevent injury
ensure that work equipment is provided with appropriately identified controls for starting, stopping and controlling it, and that these control systems are safe
where appropriate, provide suitable means of isolating work equipment from all power sources (including electric, hydraulic, pneumatic and gravitational energy)
ensure work equipment is stabilised by clamping or otherwise to avoid injury
take appropriate measures to ensure maintenance operations on work equipment can be carried out safely while the equipment is shut down, without exposing people undertaking maintenance operations to risks to their health and safety

When providing new work equipment for use at work, you must ensure it conforms with the essential requirements of any relevant product supply law (for new machinery this means the Supply of Machinery (Safety) Regulations 2008). You must check it:

has appropriate conformity marking and is labelled with the manufacturer’s details
comes with a Declaration of Conformity
is provided with instructions in English
is free from obvious defects – and that it remains so during its working life

If you require advice on health and safety in your workplace, please contact one of the Ashbrooke team.

16 September 202416 September 2024

Raw Sewage Enforcement Undertaking

An investigation by the Environment Agency into Severn Trent Water has resulted in an Enforcement Undertaking by the water company. The investigation revealed that raw sewage from a blocked sewer had been discharged into a brook near Gloucester – impacting about 1.7km of the watercourse.

The case has ended in the water company agreeing an Enforcement Undertaking (EU) with the Environment Agency and giving Gloucestershire Wildlife Trust £327,500.

An EU is a voluntary offer made by companies and individuals and can be accepted where the Environment Agency has reason to believe an offence has been committed.

It usually includes a payment to an environmental charity to carry out improvements. The Environment Agency received reports of dead fish on 19 August 2021 at School Lane, Quedgeley, near Gloucester.

An inspection revealed hundreds of dead sticklebacks and thousands of dead invertebrates plus several eels and a number of bullhead fish.

The Agency officer also observed what he believed to be sewage fungus growing in the watercourse for about 1km up to Meerbrook Way. The smell of sewage was strong, and the fungus was covering the entire width of the brook.

Further investigations revealed that where the brook exited the A38 at Meerbrook Way, the officer saw what he believed to be a discharge of crude sewage coming out of the bankside into the brook.

An ecological impact assessment concluded that 1.7km of Dimore Brook had been affected and that the vast majority of aquatic animal life had been killed by the sewage discharge.

Between Fisher’s Bridge and the Gloucester-Sharpness Canal, approximately 50 dead European eel, 20 bullhead, 3 chub and 400 three-spined sticklebacks were observed. Environment Agency officers said that Severn Trent had responded to the incident in a timely manner.

Gloucestershire Wildlife Trust is using the funds in a three-year programme to improve various projects close to the impacted area.

Ian Skuse, the investigating officer for the West Midlands Environment Agency, said:

Protecting the environment in the West Midlands and taking action against those that damage or threaten this is our utmost priority.

While we will always take forward prosecutions in the most serious cases, Enforcement Undertakings are an effective enforcement tool to allow companies to put things right and contribute to environmental improvements.

They allow polluters to correct and restore the harm caused to the environment and prevent repeat incidents by improving their procedures, helping ensure future compliance with environmental requirements.

Sophie Wootton-Lee, head of external affairs at Gloucestershire Wildlife Trust, said:

The money received as a result of this incident will be spent close to where it took place, to benefit the wildlife and people who live in and around the wetlands near Gloucester.

For Gloucestershire Wildlife Trust this is essential – spending the money close to where the damage has occurred, to try and mitigate some of that impact.

The project is complex and will deliver a range of elements, including habitat creation and restoration.

We’ll also be looking to increase the habitat provided in the area for an iconic Gloucestershire species, the European eel, by creating pond complexes, reedbeds, scrapes and carrying out wet ditch restoration.

Emma Hardy, Minister for Water and Flooding said:

Pollution incidents like this are unacceptable and have a devastating impact on the environment and local communities.

This Government will never look the other way while water companies pump record levels of sewage into our rivers, lakes and seas.

We will strengthen regulation, crack down on water companies and begin the work of cleaning up Britain’s waterways. As an immediate step, the Water (Special Measures) Bill will strengthen regulation including new powers to ban the payment of bonuses for polluting water bosses and bring criminal charges against persistent law breakers.

Background to the Enforcement Undertaking

An Enforcement Undertaking is available to the Environment Agency (EA) as an alternative sanction to prosecution or monetary penalty for dealing with certain environmental offences.

It is a legally binding voluntary agreement proposed by a business (or an individual) when the EA has reasonable grounds to suspect that an environmental offence has occurred.

Enforcement Undertakings for environmental offences were first introduced under the Environmental Civil Sanctions (England) Order 2010 and the Environmental Civil Sanctions (Miscellaneous Amendments) (England) Regulations 2010 but have since been made available for other environmental offences, including under the Environmental Permitting Regulations.

Accepting an Enforcement Undertaking is always at the discretion of the EA. However, if accepted the EU helps firms and individuals who have damaged the environment or operated outside of legislative requirements to complete actions which will address the cause and effect of their offending, including making a payment to an appropriate project.

EUs can be offered for offences including polluting rivers, breaching permit conditions designed to protect communities, or failing to register and comply with recycling/recovery obligations. The Environment Agency then carefully considers whether the actions offered by the offender are acceptable. 

Why use Enforcement Undertakings? 

Businesses will voluntarily secure compliance now and in the future, without attracting a criminal record. 
The environment, local community and those directly impacted by the offending can benefit through actions being offered in an EU. 
They allow the EA to deal with the less intentional and polluting offending in a more proportionate way than prosecution through the criminal courts.

The Environment Agency reserves the right to prosecute or impose a monetary penalty, where offenders fail to comply with the terms of an Enforcement Undertaking offer. 

If you require environmental advice for your business, please contact one of the Ashbrooke team.

10 September 202410 September 2024

Landlord ignored gas safety duties

A landlord ignored gas safety duties and was given a suspended sentence of 26 weeks and electronically tagged for 4 months after putting the lives of her tenants at risk by not maintaining gas appliances at a property in Kent.

Dawn Holliday, 62, refused to undertake gas safety checks even after the Health and Safety Executive (HSE) took enforcement action against her.

Ms Holiday claimed to have no money for undertaking maintenance to the property, leaving the tenants with a very temperamental boiler that banged and often left the occupiers with no heating or hot water, as well as a condemned cooker for several years. However, an HSE investigation found that Ms Holliday was receiving full rent from the tenant for the property on First Avenue in Eastchurch, when the enforcement action was taken.

Despite the Improvement Notice served on Ms Holliday to undertake gas safety checks, she ignored this and further requests from HSE. She also claimed the tenants had moved out and had not been paying rent, the investigation found this claim to be completely untrue.

On the 2nd September 2024 at Sevenoaks Magistrates Court, Dawn Holliday, of Golden Leas Holiday Park, Plough Road, Minster on Sea, pleaded guilty to three charges under Health and Safety at Work etc Act 1974 Section 21 and Gas Safety (Installation & Use) 1998 36(2) and 36(3) and was sentenced to imprisonment of 26 weeks, suspended for a period of 12 months, District Judge Leake also imposed an electronically monitored curfew on Ms Holliday at her address for a period of 4 months with the curfew hours of 20:00-06:00 and awarded HSE £750 in costs. Additionally, the Judge made a remediation order pursuant to section 42 of the 1974 Act, for Ms Holliday to undertake the gas safety inspection required of her by the 6th December 2024 thereby complying with her gas safety duties.

Speaking after the hearing, HSE Inspector Joanne Williams said:

“We are dedicated to ensuring that landlords operate within the law and provide safe accommodation for tenants. We do not tolerate disregard for health and safety and consider the non-compliance of HSE enforcement notices as a serious offence. In this case Ms Holliday chose to flagrantly ignore the support, guidance and warnings from HSE to assist her in compliance with the law and continued placing her tenants at serious risk of injury or even death. Wherever possible we will continue to work with landlords to improve health and safety. However, we will not hesitate to take enforcement action where necessary and prosecute individuals who ignore warnings and the law.”

The Gas Safety (Installation and Use) Regulations 1998 imposes gas safety duties on dutyholders to ensure that gas installations and appliances are installed safely and are maintained and inspected. Dutyholders can include employers as well as landlords or others in control of premises.

If you require health and safety advice for your business, please contact one of the Ashbrooke team.

2 September 20242 September 2024

Farms are not playgrounds

A recent prosecution case highlights the dangers for children in agricultural environments and that farms are not playgrounds. In the case, video footage taken by a neighbour captured the moment a farmer allowed one of his grandchildren to illegally ride in his tractor and ultimately led to his conviction.

Howard Walters, 78, was given a 12-month community order after he was spotted with the child in the tractor cab as he fed cattle on his farm in South Wales.

Walters had already been issued with a prohibition notice by the Health and Safety Executive (HSE) in November 2020 after admitting to inspectors he allowed his pre-teen grandchildren to ride in his tractor. However, just two months later, he was filmed by his neighbour flagrantly breaching the terms of that notice.

A HSE inspector who investigated Mr Walters says the law is “very clear”. Children under 13 are specifically prohibited from driving or riding on or in any agricultural machine, including the tractor cab.

At the time of committing the offence, Walters, of Tirmynydd Farm in Birchgrove, Swansea, was already the subject of a suspended prison sentence for unrelated environmental offences. In a case that was heard on 27 August 2024 at Swansea Crown Court, he was fined £500 for breaching the terms of that sentence. As part of his community order, Walters must attend 25 days of rehabilitation.

Agriculture remains one of the most dangerous industries in Britain, with on average around 29 people killed each year. Being killed by vehicles remains the most significant cause of work related fatality over the last five years.

Unfortunately, children are among those deaths with it often being the case that they are family members, with many killed by farm vehicles. Guidance is available for farmers on how to prevent accidents to children on farms.

Howard Walters, of Tirmynydd Farm in Birchgrove, Swansea, pleaded guilty to breaching section 33(1)(g) Health and Safety at Work etc Act 1974. He was given a 12 month community order and ordered to pay £3,000 in costs.

HSE inspector Simon Breen said:

“The law around children being allowed in the cabs of any agricultural vehicle is very clear. For any child to ride on agricultural machinery like a tractor is unsafe and illegal. The fact this farmer chose to ignore a prohibition notice for putting his grandchildren at risk is all the more staggering. We will take action against those who break the law. The solution is very simple – young children should never ride in agricultural vehicles.”

The HSE has published detailed guidance about child safety on farms and in agriculture which is available on its website.

How farmers can keep children safe on farms

Children must not be allowed in the farm workplace (young children should enjoy outdoor space in a secure fenced area).

Any access to the farm workplace by children under 16, for example for education, or knowledge / experience, must be planned and fully supervised by an adult not engaged in any work activity.

Children under the age of 13 years are specifically prohibited from driving or riding on any agricultural machine. It is illegal.

Properly trained, instructed, and supervised older children may, in tightly controlled circumstances, be able to help with some straightforward low risk tasks.

If you require health and safety advice for your business, please contact one of the Ashbrooke team.