CAUGHT IN THE ACT
The Corporate Manslaughter Act comes into effect on 1 April 2008 and follows years of argument about how best to hold companies to account for deaths caused in the course of their activities. There have been a number of high profile disasters over the last few decades, including the Zeebrugge ferry disaster which have caused public outrage but where no one “controlling mind” has been grossly negligent and therefore the companies have not been held to account. Following Zeebrugge, P&O European Ferries were memorably described as being “infected with the disease of sloppiness from top to bottom”. The new legislation is designed to plug this loophole and makes companies liable for grossly negligent and systemic health and safety failings.
The key to protecting your company against a potential prosecution under the Act is to ensure that health and safety is made a priority at every level of your organisation and that this is backed up by robust and constantly reviewed health and safety systems. This means that all the fundamentals such as a good health and safety policy, up to date risk assessments, job descriptions and employment contracts that reflect health and safety responsibilities, as well as a nominated health and safety director on the Board, should be in place.
However, as an HR director, you must also ensure that there is a proper hierarchy of responsibility within your organisation, meaning that every employee of the company is aware of their health and safety responsibilities, and is accountable for them. It also means that each employee is aware of the need to report health and safety issues up the company’s chain of command so that each issue is dealt with at an appropriate strategic level. For example, a Board of directors may not be responsible for shifting an obstruction in a warehouse, but could be responsible for authorising major capital expenditure for equipment to reduce dangerous working at height.
Ironically, the new Act provides for unlimited fines just as the Health and Safety at Work Act currently does. These have been increasing markedly, with a record £15 million fine imposed on gas utility company, Transco in 2005 for failures resulting in a gas explosion which killed a family of four.
So what are the real practical ramifications for your company? Firstly, a corporate manslaughter prosecution will place your company’s health and safety procedures under the spotlight like never before, and although individual prosecutions are not possible under the Act, individuals can still be prosecuted for gross negligence manslaughter or indeed under existing health and safety legislation. More individual prosecutions are likely to follow. Secondly, in the event of conviction, the Court has power to make a Remedial Order to remedy any breaches and deficiencies in a company’s health and safety systems. This could be extremely expensive. Thirdly, and potentially disastrously for corporate reputation, a Court that convicts an organisation of corporate manslaughter may make it publicise the fact that it has been convicted of the offence, the sentence imposed and any Remedial Order made. Finally, business reputation is crucial. A corporate manslaughter conviction could markedly affect brand value and deeply damage relationships with suppliers and customers.
No company wants to be branded the first “corporate killer” under the Act. As an HR director, there are serious practical steps that you can take to reduce the risk of a corporate manslaughter conviction. The most important is to ensure that there is a clear hierarchy of responsibility as described above. To assist, have a look at risk management systems that are now available which ensure proper reporting of health and safety issues and that appropriate management deals with these. Couple this with a culture of health and safety, ensuring that employees are constantly reminded of their safety responsibilities, from the moment of their induction through ongoing training to the day they leave. No organisation is perfect, and health and safety incidents inevitably occur, even in the best run companies. However, sensible practical steps can be taken now to prevent the tragedy of a fatality and to demonstrate that far from being grossly negligent, your organisation is passionate about the safety and welfare of those inside and outside it.