Corporate Manslaughter – Why do you need to know about this?

Had another interesting conversation with a client today, which has prompted me to post this article.  As a firm of accountants, we also provide HR through our specialist in-house team and the topic talked about today was Corporate Manslaughter.

The client didn’t know the rules; do you know them, and more importantly, apply them….

The Corporate Manslaughter and Corporate Homicide bill came into effect in April 2008. The act reinforces the duty of care employers have to their employees and extends it to the vehicle as part of the workplace (even if it’s the employee’s own vehicle). The act affects all companies and organisations regardless of size and the penalties for infringement are severe.

The Corporate Manslaughter and Corporate Homicide legislation means that it is easier to prosecute all organisations and companies for manslaughter, (and homicide in Scotland), following a work related death.  Instead of having to identify the “controlling mind”, where a large part of the procedural failure is at management level this is sufficient to bring a successful prosecution.

Organisations have to ensure that they have a complete Health and Safety regime in place for any employee who drives as part of their work. Whilst this may appear to be another layer of red tape to become tangled in it can be used to enhance the businesses efficiency and can have a positive effect on the organisation’s bottom line. Good managers will use the legislation to turn a threat into an opportunity.

In the event of a work related death, attention focuses on the organisations senior management to see if they have put the correct procedures in place and that those procedures were robust enough, monitored and managed properly.

In essence the organisation and its procedure will be scrutinised to see firstly, if their management strategies could have caused the fatality, and secondly, if any failure amounts to a gross breach in the duty of care to the person killed. Should the organisation fail either of these criteria instead of any one individual being found guilty of gross negligence, the organisation as a whole will be prosecuted?

This legislation goes to the heart of the organisation’s culture.

Typical instances that leave a company open for prosecution could include:

  • Companies that expect their van drivers to make an excessive number of deliveries and collections in a day.
  • Suppliers that promise delivery times which are impossible to achieve without exceeding speed limits.
  • Company sales reps that set themselves an unreasonable schedule.
  • Employees that are expected to arrive at a remote site, work all day, and travel home again afterwards.

Practices such as these put the driver, their passengers and all other road users at risk. Under the Corporate Manslaughter act these practices are deemed to be unacceptable. Where senior management of a company have not taken control of the underlying issues they are leaving the company open to prosecution when a fatality occurs. In short the act picks up companies that fail to embed health and safety into their management process.

The act covers, all companies, businesses and organisations, regardless of size.

This also covers partnerships, trade unions, employer’s organisations, local authorities and NHS trusts as well as some government departments.

The penalties for organisations are severe.

The courts can impose any or all of the following punishments:

  • An unlimited fine. This will probably be based on turnover and profitability, this could include global or group turnover.
  • A publicity order. The convicted organisation would be required to publicise its failings.
  • A remedial order. The organisation would be forced to put the systems in place to control any future risk.

It is still be possible to prosecute individuals under existing Health and Safety legislation as well as civil actions, criminal prosecutions and common law manslaughter.

Anyone who drives as part of their work is covered by the Corporate Manslaughter act.

Companies need to be aware that the act covers all employees irrespective of their duties, the amount of driving they do or who owns the vehicle, and even includes contractors and associated agencies. People commuting to and from a fixed base are outside its scope. For instance, an employee who lives in Ipswich and works at the company’s head office in Bury St Edmunds, their commute from home to work is not covered under the act. However, if the employee goes to Bury St Edmunds via a site in Sudbury the whole of that journey would deemed as an at work journey.

Compliance with the act is exactly the same as compliance with any other health and safety requirement, all about good management.

Work Related Road Safety should be included in any existing Health and Safety policies and procedures. The Health and Safety Executives Driving At Work: Managing Work Related Road Safety has become the minimum acceptable standard for the management of occupational road risk. Outlined below are the steps which are regarded as best practice.

Responsibility for Health and Safety has to start at the very top.

A chain of command needs to be established, starting at the top with board members / proprietors, and descending through senior managers, managers and individuals all must be aware of what their obligations, responsibilities and duties are. Everyone needs a full understanding of their duty of care and the need to enforce and continually improve it. Systems need to be set up and duties allocated to key members of staff to ensure that everything reasonably practicable is being done to reduce and avoid risks on the road.

Risk assessments, audits and health checks should be carried out to identify risks within the organisation; this must include all employees driving on company business, contractors and associated agencies.

Companies with five or more employees must have written Health and Safety policies, they are advisable for smaller organisations. The risks need to be evaluated, policies written on how to minimise the risk, and the controls implemented to cover or eliminate them. All employees need to be made aware of and, crucially, understand the policies and the need for them. The policies need regular updating and all employees need to be involved with this, both in terms of being aware of the updates, but also having an input into them.

One of the pitfalls that employers often fall into is trying to impose a Health and Safety regime, rather than bringing the managers and employees with them. Where Health and Safety is viewed, at any level in the organisation, as an imposition the systems quickly break down.

Records must be maintained to ensure that all vehicles used on company business (including the employees own) are legal, fit for the purpose and regularly maintained.

Driving licences and insurances must be checked regularly (3 monthly and at renewal) for all employees who drive on company business, to check eligibility to drive.

Accident management procedures should be put in place to assess any collisions so that they can be avoided in the future.

It is also essential to ensure that the systems are in place for continual reporting, monitoring, measurement, evaluation and improvement.

 

Further information can be obtained from:

http://www.hse.gov.uk/pubns/indg382.pdf

or contact our associate H&S Advisory firm peter@sureteam.co.uk