CAT allows in part Construction Recruitment Forum penalty appeals, and rules on application of OFT’s Penalties Guidance

04/04/11

Hays and others v. OFT [2011] CAT 8

The Competition Appeal Tribunal has allowed in part the appeals of three undertakings which participated in the Construction Recruitment Forum cartel, reducing their fines by approximately 80%.

The Tribunal's judgment gives detailed consideration to several aspects of the Penalties Guidance which the OFT uses to set fines, in particular:

• The appropriate measure of turnover to use when setting a penalty in the recruitment sector.
• The correct year(s) in which to assess an undertaking's turnover.
• The "seriousness percentage" which can be justified for an infringement involving price fixing and a collective boycott.
• How to adjust an undertaking's basic penalty so as to ensure that the penalty meets the twin objectives of culpability and deterrence.
• When an employee involved in an infringement will be regarded as a "senior manager" by way of an aggravating factor.
• The extent to which the adoption of a programme designed to foster compliance with competition law counts as a mitigating factor.

The judgment is here.