The killing fields

In 2004/05, 581 people died as a result of work-related incidents. At the halfway point in 2006, the service industry led the way with the highest number of fatalities; 202 people were killed during the first six months of this year. Construction takes second place. The very nature of your work means that risks are inherent in most situations. If the risk is partnered with negligence, the results can be lethal.

The Health and Safety Executive will investigate any instance of a fatality at work and decide whether to prosecute for breach of any health and safety law. If their investigation reveals that a company’s gross negligence has brought about the death, the file will be passed to the Crown Prosecution Service for a potential charge of gross negligence manslaughter.

For large companies it is currently difficult to link the acts of the directors with the errors which caused the death. The prosecution of P&O Ferries after the Zeebrugge ferry disaster failed, because the law (as it remains today) requires the prosecutor to call evidence which identifies a person as “the controlling mind” of the company at the time of the breach which led to the death.

For smaller companies, it is far more likely that such a link can be established and a director shown to have a direct connection with the death.

In OLL (see box overleaf), insufficient training and failure to appreciate the hazards was the main causal factor. As an m&e contractor, are you confident that your operatives are fully trained in safe working procedures, or are corners sometimes cut to speed up a job? Are all hazards identified and has appropriate consideration been given to operating conditions? Are all appliances fully isolated before work begins? Are lock offs used? Are risk assessments and safety training records up to date? Have employees complained to you about the working practices you adopt?

In Clothier, worn equipment and inadequate maintainance were the main reasons the incident occurred. When did you last check your equipment? Do you use faulty or worn machinery that does not have a current testing certificate? Do you transport ladders, supplies or ducting on the roofs of your van fleet? If so, what is the condition of the devices that secure the items to the roof bars? If your vehicle had an accident, would materials stay put or would they hurtle down the carriageway? In Clothier, the person who actually died was not employed by the company. You need to think about the people who don’t work for you; the pedestrians who are affected by your vehicle fleet.

Translate the scenario in Jackson into the context of your business. Have you tolerated employees larking around to brighten an otherwise tedious day? Have you established a safe working procedure for each aspect of your work and instructed your staff that they must follow it? Have you followed through and disciplined employees who’ve breached your standard, or have you heard gossip about the antics of some of your workers but taken no action to avoid confrontation?

The new law

The Corporate Manslaughter and Corporate Homicide Bill is currently working its way onto the statute books. The new Bill provides that an organisation will be guilty of corporate manslaughter if a gross organisational or management failing caused a person’s death. This will mean that the actions of senior management below director level can be deemed as those of the organisation.

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. However, the perceived need for opprobrium may increase conviction rates.

The government estimates a further five corporate manslaughter cases per annum in its regulatory impact assessment on the effect of the change in law. This is likely to be a huge underestimate.

As the bill is still liable to change, further full comment is reserved until it is in its final form and will be the basis for an update article in this magazine.

In conclusion, merely being incorporated into a limited company will not shield you from the criminal consequences flowing from a fatality at work. The sad reality is that simple mistakes can give rise to catastrophic consequences that are out of all proportion to the original act. After the event it is always clear what might happen. The difficulty is in spotting the potential harm before anything untoward actually occurs. Accidents do happen within the industry. People get injured. Some of these injuries prove fatal. The trauma of undergoing a lengthy trial and the years of waiting for it to come to court are terrifying experiences for otherwise law-abiding folk. The issue is whether it makes the Mr Jacksons and Mr Clothiers of this world any safer in managing their enterprises in the future.

If you are prosecuted, your insurance cover may provide for legal costs, but it will certainly not provide for any fine imposed upon you, nor is likely to cover any prosecution costs that you may also be called upon to pay. The penalties are increasing; Transco was fined £15 million in recent months. The law on corporate manslaughter is currently changing, but this will only tighten the duties on you and make it even simpler for a prosecution to be made out. Resolve to act now, before it’s too late.

Paul Verrico is a solicitor in the regulatory division of Eversheds. He can be contacted on 0845 498 4084 or email:

paulverrico@eversheds.com