Corporate Manslaughter - are you liable

 
 

Corporate Manslaughter - are you liable?

FROM 6 April 2008, the Corporate Manslaughter & Corporate Homicide Act 2007 comes into force in the UK with profound implications for anyone managing or working in a garage.

 

"Car manufacturers could be liable for design faults which cause death, car sales liable for accidents caused by faulty vehicles, or workshops for faulty workmanship, where an accident results in death"

FROM 6 April 2008, the Corporate Manslaughter & Corporate Homicide Act 2007 comes into force in the UK with profound implications for anyone managing or working in a garage.

So how will it affect you? According to official figures, more than 240 people died at work during 2006-07 and a further 30,000 were involved in accidents.

Under the new legislation, there can be profound and damaging consequences for companies that do not fulfil their obligations to protect staff, as the example below shows.

Case study
The example below shows the serious consequences for failing to take health and safety responsibilities seriously.

A customer took his vehicle into a small garage in Hove. He had put diesel in his petrol car and the garage was to drain and replace the contaminated fuel.

The garage was owned a father who had put his son in charge of running things.
It was the son who set about draining the fuel with the help of a young apprentice and because it was a cold February day, he set the workshop heater on maximum.

The result was that petrol vapours were sucked into the intake, ignited and blew back a fire ball. The apprentice suffered 60% burns and died.

A Health and Safety investigation ensued and the father received a fine of £15,000 but the son, who had ignored health and safety measures and failed to carry out a risk assessment, was found guilty of manslaughter and sentenced to six months in prison"

What you need to know
This new Corporate Manslaughter & Corporate Homicide Act moves away from the failings and guilt of the individual, which is already covered adequately by existing legislation, and concentrates on the organisation and those responsible for it. This means the directors or partners and senior management.

Aftermarket Network legal section Lawgistics

If those responsible for the business fail to take adequate steps to ensure their employees take adequate safety measures to protect their workforce and anyone likely to be harmed by their activities, then they are liable.

The term ‘senior management’ means those persons who play a significant role in management of the whole or a substantial part of the organisation activities.

This includes those in the direct chain of management from the top as well as those in strategic or regulatory compliant roles.

Proceedings against partnerships will be brought in the name of the partnership and fines will be paid for the funds of the partnership.

Fines are unlimited and in addition a court can impose a Remedial Order that will legally require a remedy to any consequence of the management failure.

In health and safety terms this could, for instance, be a requirement to complete an adequate risk assessment if it is clear that this has not been carried out as stringently as possible. Failure to comply with the Remedial Order will also attract an unlimited fine.

Included in the legislation is an additional power for the court to order the organisation to publicise in a specified manner, details of the offence, any fine and any remedial order made. In common parlance this is a ‘name and shame’ process.

Remember, it is the way the senior management have managed and organised activities that will be under the spotlight.

The Ministry of Justice has just published guidelines for companies and partnerships to aid them to be aware of and meet their responsibilities and obligations.

It is clear that those obligations extend far wider than just the systems of work and equipment used by employees to the products and services supplied to customers.

Car manufacturers could be liable for design faults which cause death, car sales liable for accidents caused by faulty vehicles, or workshops for faulty workmanship, where an accident results in death.

What of technicians carrying out road tests to ascertain a fault on a vehicle or vehicles used for business purposes which have not been fully maintained? What of the technician crushed by a vehicle when he starts it under the bonnet while it is still in gear?

There are many more situations all leaving senior management vulnerable and the guidelines make it clear that they are not able to delegate their responsibilities and so avoid liability.

The burden of proof on the prosecution will be “but for” the management failure the death would not have occurred.

Protecting yourself
So what can be done to reduce the likelihood of accident and death and protect the company, partners or senior management? There is a simple straight forward approach.

  1. Review your systems and policies now, if you do not feel able then get assistance from Lawgistics or some other reputable consultancy. We can help with company policies and written instructions, with procedure and operational controls.
  2. Carry out a Risk Assessment on each and every potentially dangerous activity/procedure/piece of equipment and identify the risk.
  3. Consider who is or could be at risk.
  4. Assess the level of risk (consider the frequency, duration, severity etc).
  5. Consider whether the risk can be eliminated or reduced by existing controls or whether more is needed.
  6. Record your assessment and inform staff of the significant findings or the controls necessary.
  7. Keep the risk and safety controls under constant review.
  8. Remember: To hide your head in the sand and do nothing is not a viable option

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