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Keeping death out of the workplace

15th May 2008, Page 34
15th May 2008
Page 34
Page 34, 15th May 2008 — Keeping death out of the workplace
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Which of the following most accurately describes the problem?

Words: Adam Hill On 6 April, the Corporate Manslaughter and Corporate Homicide Act 2007 came into law. From now on, transport firms and other employers can be prosecuted for corporate manslaughter (in England, Wales and Northern Ireland), or corporate homicide (in Scotland), if someone has been killed at, or as a result of, your work. Prosecution will be triggered if there has been a failure in how your operation is managed or organised.

The change has come about because of a widely held belief that the existing common law principles on corporate manslaughter were inadequate. This is a view that a string of failed prosecutions against large companies in particular seems to bear out.

It will still not be easy to fall foul of the new legislation, since the prosecution would have to prove a 'gross breach' of duty. But this new law marks a key change in emphasis.

Previously, the court had to be satisfied that an individual in the defendant's business acted as the "directing" or -controlling mind".

Failed prosecutions

In a particularly high-profile corporate manslaughter case, the managers at Balfour Beatty and Railtrack were acquitted following the Hatfield rail crash in 2000, which killed four people. In fact, a scan of some of the most headline-grabbing fatal accidents of recent years shows that virtually no-one has been convicted for them because prosecutors could not prove the existence of this controlling mind. One of a handful of imprisonments resulting from a charge of corporate manslaughter came after four students were killed in a kayaking accident in Dorset in 1994. The company OLL was fined £60,000 and its managing director was sentenced to three years in jail because it was possible to prove he was responsible under law.

Looking to the future. the Health and Safety at Work Act (HSWA) 1974 and its associated rules for example, the Provision and Use of Work Equipment Regulations 1998, which make it a requirement to ensure that employees have adequate training before they use any work equipment remain the cornerstone of good practice in the workplace. But, if your company's actions now lead to a death because you have breached the HSWA in a manner that suggests you have not been as organised as you should be in looking after your employees and members of the public, you could face prosecution under the new corporate manslaughter legislation.

Since the law is now focusing on firms rather than people, there are no applicable prison terms. The maximum penalty is an unlimited fine.

While the emphasis is now on proving there was a failure of duty in a company, it is still your people who will keep you on the right side of the law.

Law firm Backhouse Jones says directors and senior managers must be aware of their responsibility to ensure your firm's health and safety policies are adequate, "and that those staff implementing and enforcing the policy are trained and are making sure the workforce is compliant-.

Review your policies

In the event of a Health and Safety Executive or police investigation after a fatality, you must be able to show you have done everything by the book. Backhouse Jones suggests that now is the time to review your health and safety policies. Hauliers should look at the safety culture of the workplace as a whole, and remind staff that breaches are a disciplinary offence.

It is also worth checking to see if your insurance cover is up to the job of covering your firm and employees should a corporate manslaughter case be brought against you. •

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