Employers “complacent” about corporate manslaughter law

Julian Davis
Member - 27 posts

I totally agree with Martin. There are far too many companies and especially training companies and local authorities using the Corporate Manslaughter and Corporate Homicide legislation to scare people - even if you already are doing everything right. The late Donald Dewar was right when he said that existing legislation (HASAW) allows for the prosecution of individuals grossly negligent but what we do need is to end the weasly 'plea bargaining' by sharp lawyers that goes on to reduce the charges to little more than a slap on the wrist.

Kelly Mansfield - Workplace Law Network
Online advisor - 62 posts

Martin,


Thank you for your comments.

As you say, there are no new duties under the Corporate Manslaughter and Corporate Homicide Act. So, this doesn’t mean preparing for any new duties, but instead taking the opportunity to check that you are fully complying with existing health and safety duties; that you have effective health and safety policies in place, and that they are well communicated and monitored throughout the organisation. Our survey shows this isn’t necessarily the case.

One particular area of confusion, which the survey was intended to highlight (as opposed to mislead!) is that of insurance. It is a complicated issue when it comes to corporate manslaughter – as the Chartered Insurance Broker writing in our Special Report affirmed – because existing policies covering individuals won’t cover the corporate entity. And organisations must check that any policy they have covers them for the costs associated with action under the Corporate Manslaughter and Corporate Homicide Act – as a new piece of legislation – rather than just assume that it does. Defending this action could prove costly for organisations not covered.

The aim of our survey – and the ensuing article – was to highlight these concerns and ensure organisations prepare themselves for all eventualities, rather than assume they’ll never be prosecuted because it’ll be too difficult to prove.

The survey is not masquerading itself as “research”, and (as with the vast majority of online surveys) has its weaknesses with regard to sampling (respondents need access to the internet, exposure to the survey is limited to Workplace Law members etc.).

We try consciously very hard never to sensationalise the impact of legislation. Our approach has always been that the law is there to help society as a whole (including businesses and the people who work in them), an attitude that we have applied to some major recent issues such as changes to the law relating to asbestos, work at height, access for disabled people, and fire safety. We never adopt the ‘too much red tape’ approach. We’re very happy to stand by the survey findings.

In the light of your comments, we’ve moved the article to the ‘Network News’ (PR about the Network) area of the site, rather than the newsroom.

Thanks again for your feedback. I’d be interested to hear other views on corporate manslaughter legislation, which still seems to be surrounded by a strange silence given its magnitude.

Adrian Newell
Member - 2 posts

I agree with Martin and Julian the impact should be minimal as long as you can show that a robust system was in place i.e. risk assessments, method statements, safe systems of work etc. then there should be no problem. The interesting thing is its treatment as H & S legislation but it might be better to describe it as simple criminal law legislation. At a recent talk by a lawyer mention was made of obtaining "privilege" over any company reports etc. regarding an incident. I am not sure how this would work with the HSE requesting information where perhaps withholding it would not look good within the pretext that you are guilty until proved otherwise! Views would be appreciated.

RUSSELL HILL
Member - 36 posts

I run a driver training company and have tried really hard not to scare monger. Nobody really knows yet how this Act will affect businesses. Personally I think if it only serves the purpose of making companies look closer at the possibilty of a serious injury or a death then it will be worthwhile. Statistics show that you are about four times more likely to be killed at work on the road than all other workplaces put together. So when i do driver training all i can do is make the driver think more about their driving and the consequences. If I contribute to one less death thats one less company without hassle and one less family without grief, surely thats worthwhile.

Martin Ffitch CMIOSH
Member - 9 posts

Kelly, Thank you very much for your response, and for taking my concerns seriously.

Insurance is an art, and I am no expert at all. I believe that where organisations have cover for legal expenses this would automatically (?) include any prosecutions under CMCH - BUT it is worthwhile to say that you cannot insure against fines, and there are always huge costs that might not be included in insurance terms.

Adrian, Legal privilege is where correspondence between an individual and their legal adviser cannot be produced as evidence in a case. For example a H&S manager may want to discuss possible causes of an accident in a way that is private from the HSE.

However it has also been used as a defensive strategy in the US where H&S audit reports were prepared for the lawyers rather than the management. Then, if there was an accident (and the audit report had identified a deficiency) the audit could not be used in evidence. I recommend you watch the film Erin Brockovich as it details this point very well!

This has been taken to extreme, and consequently enforcement authorities will not necessarily allow anything to be legally privileged just because it was sent to a lawyer.

If there is a serious accident in your workplace then it is useful to immediately seek legal advice, but also cooperate fully with the HSE.

David Sharp - Workplace Law Network
Online advisor - 134 posts

Martin - Just a quick addendum to your point about cooperating with the HSE. I'm sure we would all agree that employers should be open and honest in all their dealings (not just health and safety related).

With regard to cooperation with the authorities after an accident, I think some caution should be advised. The employer's first response, after dealing with the immediate incident, is to control the flow of information to make sure that any cooperation given is coordinated, accurate and meaningful.

There are too many cases where employees or even well-meaning senior managers have their opinion on what went wrong and want them known - so not all cooperation is good or even helpful cooperation! Hence the need to appoint a single point of contact (SPOC), and - in the event of a death - to know how the work-related dealths protocol (WRDP) operates, especially useful where both the police and the HSE are likely to be involved with different remits.

Sadly, with this new law, I fear that while the good firms will be unaffected, the bad ones won't actually do anything differently (no new duties) until they are caught, when they will be punished more greatly. If ever there was a law for a corporation or public body to be aware of, it is this one.

Kelly Mansfield - Workplace Law Network
Online advisor - 62 posts

Martin - a brief furter note re. insurance. Simon Hickman, a Chartered Insurance Broker and author of our Special Report on the new Act, stresses the need to check that existing health and safety cover under public and employers liability policies extends to similar health and safety legislation, which would include the new Act, rather than assume that it automatically extends.

As you say, insurers will not provide cover for fines, and this will extend to publicity and remedial orders - other penalties that will be available under the Act and that could prove costly!