Corporate Manslaughter / Homicide Act

The Corporate Manslaughter and Corporate Homicide Act 2007 has now been on the statute books for three months. For those not fully acquainted, the Ministry of Justice has an excellent website (www.justice.gov.uk ) where its Guide to the Act can be found.  While the purpose of the Act seems quite clear – to allow the prosecution of large corporations where deficiencies amounting to gross negligence in their management of health and safety processes have resulted in the death of an employee or other person, history suggests that it is smaller businesses that will bear the brunt of prosecutions.

With few exceptions, all employers fall within the scope of the Act and so face the prospect of unlimited fines upon conviction.  Where gross negligence is shown, and this is essential for any prosecution to be successful, there is the distinct and cheerless prospect of a company’s insurer then refusing to cover any subsequent civil damages claim on the grounds that the insured has breached his contract of insurance.  Bereaved families are likely to seek to recover damages from the company’s assets, which will be sufficient (if the business has managed to survive the fine in the first instance) to ensure its closure.  While the Act is limited to the prosecution of businesses, it seems unlikely that owners and senior managers will escape subsequent prosecution for breaches of their duty of care under the Health and Safety at Work Act, with the further prospect of substantial personal fines or even imprisonment.

Avoiding prosecution and conviction should be a priority for all businesses, owners and managers. Yet anecdotal evidence suggests that many businesses have given little thought and even less action to the fairly complex legal relationships that now exist, in health and safety terms, between Employers and Employees, Clients and Subcontractors. Following a fatality, it is now feasible that a business could find itself prosecuted because of negligence by others in the chain of liability, perhaps, for example, where different companies are working alongside each other in the same workplace but have failed to provide each other with adequate information about each other’s activities, negligence by management to provide such information as well as to ask for it. 

Employers not only need to have robust documented health and safety systems for their own staff but must also ensure that these are effectively implemented; it is almost certain that to have the former without the latter will constitute gross negligence.  However, their subcontractors must also have robust systems and processes in place, and this legislation is forcing all businesses and organisations to verify that this is the case. In the motor vehicle recovery industry, recent legislation regarding working time and drivers’ hours has forced many Recovery Operators to subcontract to other operators, either within their territory to cover manpower shortages, or outside their territory to ensure the onward transit of Members.  Yet many have not taken steps to confirm that subcontractors have robust safety systems in place nor have they Satisfactory documentary evidence to prove it should the need arise.

Personal experience and anecdotal evidence suggest that standards of implementation of health and safety systems are not uniform, and for many the legislation is an inconvenience best avoided.  What is needed to avoid allegations of gross negligence is compliance with the spirit of the legislation, which means having the required systems fully and effectively implemented.

The main benefit of compliance with the spirit of the legislation is that the records generated e.g. plant maintenance, training, will provide a sound defence in the event of the worst happening; how can you have an effective defence if you don’t have effective records?  Furthermore, although HASAW Act permits employers with fewer than five employees not to document their health and safety policy, how can you provide adequate evidence that you have addressed health and safety if your arrangements aren’t documented?  So the first requirement in avoiding a charge of gross negligence is to have a documented and effective health and safety system in place.  ‘Effective’ means having clearly defined arrangements and responsibilities, risk assessments demonstrating that risks have been eliminated or reduced to as low a level possible, safe systems of work, and training records which reflect the safe systems of work; (note that risk assessments must conform to the standard laid down in the Management of Health and Safety at Work Regulations 1999, as well as in specific Regulations e.g. COSHH 1999)

However, this is not enough.  The second criterion you must meet is to be able to demonstrate that your system is fully operational at all levels in your business. This is achieved partly through the records created but also through management’s monitoring of the system using techniques such as safety competence appraisals and workplace inspections (including at remote situations such as at other employers’ sites), safety audits and regular management reviews and planning.

If you have the above in place, you may not necessarily avoid a fatality but it is probable that you will avoid becoming an early victim of this new legislation.

Lack of time is usually the busy manager’s worst enemy and is one of the main reasons why health and safety systems tend to be undeveloped or underdeveloped.  However, off-the-shelf or generic packages can be used, provided they are customised to a business’s specific requirements, conform to the legislative criteria and are industry and company specific.  Further information can be obtained by contacting Murray Duncan who is the author of this article.

 

E: – enquiries@tqma.co.uk  T:  01738 631770 / 0771 275 1866                                           

Murray Duncan is Principal Consultant with Tayside Quality Management Associates