Health and Safety Update: Irish Sentencing Guidelines

Covid and Brexit – it has not been a dull time for businesses operating on both sides of the Irish Sea. Many UK based companies and individuals increased the scale of their operations in Ireland post Brexit only to find that the implementation of their operational policies and procedures was disrupted by the pandemic.

As we return to the new normal, we considered it would be an opportune time to provide an update on the attitude being adopted in the Irish Courts to Health and Safety issues and any sentencing guidelines if a company or individual is found guilty of any breaches.

Perhaps not unsurprisingly, there are many similarities between the duties and responsibilities of employers in both the UK and Ireland as regards health and safety. Most of the legislation which underpins any prosecution comes from the underlying European legislation that was applicable to the UK and Ireland dating back to the late 1980s.

As the UK government legislates in the new post Brexit environment, we can expect more of a divergence between the two jurisdictions. That said, it is useful for those companies operating in both jurisdictions to be aware of the considerations that the Irish courts take into account when sentencing for health and safety breaches. 

In Ireland under section 78 of the Safety, Health and Welfare at Work Act 2005 anyone found guilty of an offence can be:

1. On Summary Conviction – Fined €5,000 and/or face 12 months imprisonment
2. On Indictment – fined up to €3,000,000 and/or face 2 years imprisonment

There are no sentencing guidelines similar to those applicable in the UK.

Instead, the courts provide guidance on how to interpret the legislation.  In the recent Irish Court of Appeal DPP v Telstar Investments Ltd [2022] IECA 235 addressed the factors to be taken into account in considering such penalties. In that case the DPP appealed what they considered an unduly lenient fine of €7,500 imposed by the Circuit Court for breaches of health and safety legislation as a result of the removal of ceiling tiles containing asbestos. 

The Court of Appeal considered the Judge's sentencing remarks and found:

1. The fine imposed failed to reflect the gravity of the offending
2. The fine imposed did not take account of the general principle of deterrence
3. The entire amount of outlay in terms of clean should not have been deducted in mitigation (in this case the company had paid €38,500)
4. The Court should consider appropriate mitigation factors such as:
   1. A plea of guilty
   2. Co-operation with HSA
   3. Remedial steps taken such as a clean-up operation
   4. The absence of any prior offending
5. In general, the sentencing must be in accordance with the constitutional guarantee of due process

In this case taking into account all these factors, the Court more than quadrupled the fine to €40,000.

This case is a useful insight for companies facing a Health and Safety prosecution in Ireland. 

It is also worth noting that businesses operating in both jurisdictions are well advised not to ignore their health and safety obligations in Ireland since some of the headline fines may not be as high as in the UK. Significant fines can nonetheless still be handed down as evidenced by two recent fines imposed in the cases of DPP v Nationwide Crane Hire Limited and DPP v Denis Moriarty The Kerries Limited where fines of €200,000 and €220,000 were levied respectively.

Andrew Sanderson is a Partner in the Dispute Resolution team in Fieldfisher's London office. He defends both individuals as well as companies who are subject to investigation and prosecution by the Health and Safety Executive.  He is a Member of the Health and Safety Lawyers Association and lectures on issues such as corporate manslaughter and corporate/directors’ responsibility.

Neil Cahill is a Senior Associate in the Dispute Resolution team in Fieldfisher's Dublin office. He has acted for insurers and large corporates in the defence of Health and Safety prosecutions. Neil is admitted to roll of solicitors in the Republic of Ireland and Northern Ireland.