Death & public humiliation! Getting tough on H&S
March 1st 2008

Julian Roberts, managing director of Safety Media explains that companies and organisations all over the country are being pressed by their lawyers, accountants and insurance advisers to take immediate steps to put their health and safety house in order. The surge of interest in the subject heralds the Corporate Manslaughter and Homicide Act 2007 under which employing organisations can face unlimited fines and other penalties if gross failures in their management of health and safety result in a death

Organisations with good health and safety cultures need do nothing to comply with the law, which contains no new obligations nor imposes additional regulatory burden. The government's principal aim was to make it easier to convict organisations for deaths caused by negligence, by reducing the need to prove manslaughter by one of the 'controlling minds' within an organisation's senior management. It has been difficult to prove a convictable link between a death and the 'controlling mind' in large organisations in the past, and one memorable prosecution to fail in this respect was that of P&O European Ferries following the sinking of the Herald of Free Enterprise For organisations less rigorous in their approach to health and safety the stakes have never been higher. A conviction under the act can result in fines of more than 10% of turnover but with no set upper limit, and a publicity order which compels the organisation to publicise the circumstance of its conviction in a way specified by the court. This may mean advertising its disgrace on national media, on its own website or its annual report.

Under the spectre of public humiliation and unlimited fines many organisations would do well to revisit the training, attitudes and policies which underpin their safety cultures and check for failures. A jury would consider all evidence that 'shows that there were attitudes, policies, systems or accepted practices in the organisation that were likely to have encouraged any such failure or produced tolerance of it.' In other words, the whole approach to health and safety will be scrutinised, and any collection of failings may allow the conclusion to be reached that the defendant was criminally deficient.

While organisations and companies and not the individuals associated with them will be prosecuted under the new law, which will come into effect on April 6, directors and senior management remain vulnerable under existing legislation.

Prosecutors will target them if suspected of having personally committed the offence of common law manslaughter – that is, for gross negligence in the conduct of their management roles – in the same way they would have done before.

One area of health and safety which should be reviewed is training, and not just for the rank and file. Responsibility for the management of Health and Safety lies with a company's directors, and even they cannot be sure that their business practices result in full compliance if they are ignorant of the regulatory landscape and of their responsibilities within it. An organisation must be able to demonstrate good 'attitudes, policies and systems' should the need to defend itself arise, and that begins in the boardroom.

The Ministry of Justice guidance says that factors which may be considered when investigating senior management failures will include the systems of work used by employees, levels of training, adequacy of equipment, and issues of immediate supervision and middle management.

Ensuring that staff are correctly trained in health and safety is essential in ensuring health and safety standards are met and maintained.

It is not all bad news. Insurers always welcome well managed, quality 'risk,' and by improving training and revitalising health and safety generally it is frequently possible to substantially reduced insurance premiums. Maintaining a positive approach to your risk management is key to your Liability Insurer's acceptance and pricing of your business; significant changes made to the way you view health and safety could bring significant benefits.

And even when things have gone wrong in the past it should be possible to demonstrate that lessons have been learned and steps taken to ensure that mistakes aren't repeated, and that the organisation is an even better risk as a result.

Organisations and companies which ignore the new offence of corporate manslaughter will do so at their peril because the powers it affords the courts are substantial. However, because the law does not bring new obligations nor demand specific action there is a risk that the opportunity will be missed by many, at least until the first public confessional and reports of huge fines start making headlines.

Safety Media specialises in safety training products, including E-Learning, software and DVDs. It recently issued a free manslaughter information pack and an online tool that allows firms to assess their safety culture. For details see www.corporatemanslaughter.net

More articles from Safety Media Limited: