It could be you

It's a sad reality that a thoughtless mistake at work can have catastrophic consequences. You might think your company takes all possible precautions, but think again. Do your staff need to drive for their work, for example? Are they expected to go to a new job very early, having worked very late the night before? The mix of tiredness and driving can kill.

When a workplace fatality occurs, the Health and Safety Executive will investigate and decide whether to prosecute. If it discovers gross negligence brought about the death, the file is passed to the Crown Prosecution Service for a potential charge of gross negligence manslaughter.

In smaller companies, proving if a director has a direct connection with the death is usually not difficult, as illustrated by the case of OLL. In 1993 eight students, their teacher and two instructors from OLL tried to canoe across Lyme Bay as part of an organised expedition. But OLL had failed to equip any canoe with distress flares or to inform the coastguard of the trip. Four students died. An OLL director was sentenced to a custodial sentence of three years and the company was fined £60,000, putting it out of business.

Another example is that of Keymark Services, one of whose employees fell asleep at the wheel of his lorry on the M1. He crashed into two vehicles, killing two men. It transpired that the drivers had been keeping false records of their working hours – at the company's behest. Director Melvyn Spree received a seven-year prison sentence.

As a design engineer, are you confident your operatives are fully trained in safe working procedures or are corners sometimes cut for speed? In line with the new CDM Regulations 2007, have you designed into the building safe maintenance systems and considered the building ergonomics? If your staff go on site, has the working area been risk assessed, and is the principal contractor notified when you are on site? With fire safety law tightening, have you considered the relevant fire safety guide for the building being constructed?

Engineering may be very different from lorry driving. But do you sometimes expect employees to be ready to drive out at 9am, even though you know they worked until the early hours?

Engineers are not likely to be under the same record-keeping requirements as lorry drivers, but do you sometimes expect staff to be back at their desk, ready to drive out again, for 9am, even though you know they worked until the early hours as a project nears completion? Do you expect employees to do a job in Wrexham on Monday, Skegness on Tuesday and Edinburgh on Wednesday?

In the past, linking the acts of directors in large companies with the errors that caused a death has been extremely problematical. But the Corporate Manslaughter and Corporate Homicide Bill, now working its way on to the statute books, will change that. An organisation will be guilty of corporate manslaughter if a gross organisational or management failing caused a person’s death. This will mean the actions of senior management below director level can be deemed as those of the organisation. Actions can be aggregated.

Charges under the Health & Safety at Work Act 1974 can run alongside a prosecution for corporate manslaughter. As fines under either charge are unlimited in the crown court, it may, in practice, be difficult to draw a distinction in the mind of a jury as to the point at which a serious health and safety breach crosses into the realm of corporate manslaughter. The perceived need for opprobrium may increase conviction rates.

At this stage, the bill is still liable to change, so detailed comments on it are reserved for a future article. But now is a good time for companies to be mindful that it is coming – and resolve to act now to change practices where appropriate.