Duty of Care

The Corporate Manslaughter and Corporate Homicide Act 2007 is a landmark in law. For the first time, companies and organisations can be found guilty of corporate manslaughter as a result of serious management failure resulting in a gross breach of a duty of care. The Act, which came into force on 6 April 2008, clarifies the criminal liabilities of companies, which includes large non commercial organisations, where serious failures in the management of health and safety result in a fatality. Source: HSE

Does This Concern You?

The answer should be YES, but not to the point where you start to panic or loose sleep. Reading the trade press, and some alarmist websites, you could be forgiven for thinking that unless you spend huge sums of money having your employees risk assessed and trained (including those who drive on company business) you will find yourself in court. Well, the good news is… It need n’t cost the earth and isn’t that complicated, and will certainly cost less than a fine, which can up to 10% of turnover, plus all the hassle and publicity of a court case.

How To Avoid Prosecution

The key to avoiding prosecution is simply to ensure that your organisation follows the relevant health and safety legislation, and the readily available best practice guidance.

Employers are required to manage risks under section 2(1) of the Health and Safety at Work Act 1974. This requires employers ‘to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all employees’. This is supported by Regulation 3 of the Management of Health and Safety at Work Regulations 1999, which requires employers to make ‘suitable and sufficient assessment’ of risks. While these are not new requirements, the new Act is an opportunity to take a fresh look at how risk is being managed in the organisation.

The Organisation should:

• place health and safety at the top of the agenda for each board meeting;
• plan its health and safety, agree a policy and understand all the issues involved;
• must deliver on this policy, which means ensuring that health and safety arrangements are adequately resourced and that competent health and safety advice is obtained;
• monitor health and safety, including ensuring that appropriate weight is given to the reporting of both preventive information and incident data, and carrying out periodic audits of the effectiveness of management structures and risk controls;.

The Ministry of Justice guidance on the Act says that factors that may be considered when investigating senior management
failure will include:  

• Systems of work used by employees
• Levels of training
• Adequacy of equipment
• Effectiveness of immediate supervision and middle management.

A company’s strategic approach to health and safety could also be investigated, including:

• Its arrangements for assessing risk
• Procedures for monitoring and auditing its processes. 

Investigations will not just look at formal systems for managing an activity, but focus on how it was actually carried out in practice.

Making sure that staff are correctly trained in health and safety will be one key factor.  This is likely to be driven by risk assessments and is the key to ensuring health and safety standards are met, maintained and communicated.

Of course, even the best workplace health and safety arrangements can sometimes go wrong.  What’s important is to learn from any incidents or accidents and take steps to ensure that they don’t happen again, especially if it could lead to a future fatality and an associated corporate manslaughter prosecution.  

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