We need to play it safer

Almost every working day, someone is killed as a result of a workplace accident and many more are injured. The number of workplace deaths is higher in the construction industry than any other sector. Recent statistics show that half of all prohibition notices and prosecutions are brought against the construction industry. Last year, the Health and Safety Executive (HSE) carried out a safety blitz on construction sites in the east and south east of England and, as a result, issued twenty improvement notices and fifty five prohibition notices. At some sites, inspectors found that even the most basic safety precautions had not been implemented or maintained.

The EU's European Agency for Safety and Health at Work has announced that it is to target health and safety in Europe's construction sector. Meanwhile, in the UK the HSE is already targeting three key areas which include falls from height and employee transportation. Accidents arising from these activities tend to occur more in the construction industry than in other sectors and persuading the HSE not to take action where incidents come within one of these targeted areas will be difficult.

The Magistrates Court or Crown Court can impose fines where an organisation is successfully prosecuted for a health and safety offence. In 1999, the Court of Appeal made it clear that fines imposed by Courts should be large enough to bring home both to the company and its shareholders that a safe environment must be provided for both employees and the public. Since this time, fines have steadily increased and many heavy fines have been imposed on construction companies.

It is not just companies which can be fined. The Health and Safety at Work Act states that if a company is found guilty of a health and safety offence and the offence was committed with the consent, connivance or neglect of a director, manager, secretary or other officer, then that person will also be guilty of the offence and can be prosecuted. In April 2002, a director of a construction company was fined £20 000 for failing to ensure the health and safety of his employees. An employee was struck by a forklift truck and he suffered fatal crushing injuries. The driver of the fork lift truck did not have a training certificate and failed to see the employee.

Corporate manslaughter
Where somebody dies as the result of a health and safety failure, a company can be prosecuted for corporate manslaughter. However, it tends to be difficult to bring successful prosecutions, as it is first necessary to show that an individual, who can be identified as controlling or managing that company's affairs, is guilty of manslaughter. In larger companies it is often difficult to identify an individual who is both the embodiment of the company and possesses the mental state to be guilty of manslaughter. To date, there have only been four successful prosecutions of corporate manslaughter two of which involved small construction companies. One of these prosecutions involved another fall from height when a gang foreman was killed after falling 8 m through fragile insulation material. A successful prosecution of corporate manslaughter is likely to result in adverse publicity and a substantial fine, which could put the company out of business.

At some sites, inspectors found that even the most basic safety precautions had not been implemented or maintained.

Corporate killing
The government has been talking for some time about introducing a new offence of corporate killing. The offence will not just apply to companies, but to all 'undertakings' which is defined as 'any trade or business or other activity providing employment'. This offence will arise where an undertaking's conduct falls below what could reasonably be expected in the circumstances, and such conduct causes a death. The death will be treated as having been caused by the undertaking if it was caused by a management failure. In other words, if the way in which the undertaking's activities were managed or organised failed to ensure the health and safety of its employees or those affected by its activities. The management failure does not need to be the immediate cause of death. So, for instance, if an undertaking cuts back on training to save money and this leads to an employee making an error which causes a death, this could amount to corporate killing. Furthermore, the management failure could be an aggregate of a number of failings. It is not necessary to highlight just one poor decision.

Undertakings found guilty of corporate killing will face an unlimited fine and a criminal record. Fines could easily reach seven figures and, in addition, the court will be able to make an order that the undertaking carries out remedial action.

Be proactive
The increasing level of fines, the personal liability of directors and managers and the new offence of corporate killing make it even more important that the construction sector takes its health and safety responsibilities seriously.

Being proactive and ensuring that all necessary risk assessments, method statements etc are prepared, implemented and regularly updated will help to reduce the number of workplace deaths and injuries. Not only is this fundamental from a health and safety point of view but it will also help save time and money and protect business reputation. It is estimated that accidents cost the construction contractor 8·5% of its tender price and, in addition, there is the risk of losing customer confidence if accidents occur.