Corporate manslaughter: How to avoid breaching the law

The thought of a corporate manslaughter case is a builder’s worse nightmare. But the number of cases are rising according to recent reports by the Chartered Institute of Personnel and Development (CIPD), with five cases charged since July last year.

In June 2013 Ovenden Engineering was fined £26,667 plus a £4,000 legal bill when an employee fell through the roof of a warehouse after failing to have the right safety equipment in place. Earlier this year Swietelsky Construction and Babcock Rail were fined £60,000 plus nearly £30,000 in legal costs after a rail worker was crushed. And around the same time, Bison Manufacturing Ltd and Larkins Logistics Ltd were jointly fined £800,000 after a driver was killed by his own lorry.

Last year alone there were 450 health and safety breaches recorded by the Health and Safety Executive (HSE) in the UK building and construction sector. Forty workers were killed and more than 3,400 were seriously injured in falls from height between 2011 and 2012 in construction, the HSE revealed.
Given these figures, it’s no wonder that legislation is getting tougher as too are the fines. Since the introduction of the Corporate Manslaughter and Corporate Homicide Act 2007, we’ve seen more cases prosecuted and charged. Senior managers are also facing charges either with gross negligence manslaughter or health and safety offences - which can both attract custodial sentences.

Averaging fines per health and safety offence now run at around £15,000, plus companies found guilty have to pick up the cost incurred by the HSE’s site inspection. Around £730,000 in fees were charged for site visits from the first two months since “Fee for Interventions” was introduced in October 2012. Any company found guilty of corporate manslaughter could face fines of hundreds of thousands - not to mention the impact on the workforce and the corporate reputation.

For the future of your business and the safety of your staff, it’s worth knowing how to avoid a breach in the law and ways to prepare your company against health and safety or corporate manslaughter prosecution.

Here’s a few tips to help:

• Promote a consistent health and safety culture as well as compliance with the law. Appoint a board member with specific responsibility to drive this from the top.
• Create robust yet easy to understand policies that are followed. Consult with employees, discuss risks and how to minimise them.
• Keep records of employees’ training and consider refresher courses to ensure they can recall instruction.
• Risk assessment is not just a paper exercise. Consider all risks inherent in your business. Ensure all risk assessments are recorded, communicated, understood and applied. Having this information logged is vital evidence.
• Some accidents are simply accidents and are not always evidence of failing systems. Avoid overreacting and make recommendations for change to minimise future risks.
• Retain records of the inspection and maintenance of all equipment for a minimum of three years. An incident viewed as a minor occurrence may, over time, give rise to a claim and the records could provide evidence.
• Ensure you have an audit trail which shows that your policies are followed and you take your duties seriously.
• Provide occupational health services if appropriate to all your staff’s work.
• Provide employees with appropriate personal protective equipment (PPE). Record all issuing of PPE and training. If employees fail to use their PPE, stress the importance and benefits, and keep a record of conversations.
• Arrange adequate insurance cover, to include legal representation in the event of a prosecution.
• Implement a procedure which should be followed as soon as a serious or fatal accident occurs involving an employee or visitor to your premises. This procedure should include immediate notification to your insurers and legal representation.
• Employees also have duties. They too must take reasonable care of themselves and of other people who may be affected by their actions at work. Take the time to train staff so they’re aware of their own duty of care.

Health and safety is under the spotlight with various government reviews and tighter regulations. It’s an area with no room for complacency. But, should the need arise, seek legal advice sooner rather than later. Advice at the outset may influence the subsequent course of events.

Michelle di Gioia is an associate in the dispute resolution team at Gardner Leader Solicitors