The Corporate Manslaughter Act is set to go live in April 2008, but despite massive penalties, it does not raise the health and safety bar, so those already complying have less to fear, says Jenny Keefe
After much deliberation, the Corporate Manslaughter and Corporate Homicide Act 2007 finally received Royal Assent in July. From April 2008, organisations whose gross corporate failings in health and safety lead to the death of an individual could face prosecution and an unlimited fine.
The good news is that the majority of HR and fleet managers can sleep easy because the Act is unlikely to affect them, provided that they meet the current minimum health and safety standards.
Yet the bad news is that, for employers who do fall short on health and safety rules, the consequences could be catastrophic. David Collins, a health and safety principal at law firm DWF, says: "As a general principle, if an organisation is meeting all existing health and safety legislative requirements it won't fall foul of this Act. It's not intended to raise the standards which organisations currently have to meet. Consequently, proof of compliance with all relevant health and safety regulations, as well as the Health and Safety at Work Act 1974, should avoid any finding of serious failure."
Weak spots
This is all well and good, except that company cars, and cars driven for work, are a particular weak spot for employers. Organisations are negligent if they don't ensure that both employees and vehicles (including private ones) are fit to be on the road. Yet, despite this, the Employee Benefits Fleet research 2007 found that only 30% of employers have carried out risk assessments on work-related car use and just 30% offer driver training.
These small chinks could mean big trouble. The Corporate Manslaughter and Corporate Homicide Act 2007 will make it easier to prosecute an organisation when a "gross breach" of its health and safety duty leads to death. Previously, to convict an organisation of manslaughter, the prosecution had to find gross negligence in at least one individual senior company officer or director. Now, courts will be able to examine organisations as a whole, looking at senior management failings.
Mike Appleby, a partner at Fisher Scoggins Solicitors, says: "The Act is bringing into sharp focus organisations' health and safety duties. The Act is a more serious form of health and safety prosecution: if convicted, the fines will be greater and the reputational damage more severe."
So, if there was ever a time to scrutinise every aspect of your fleet health and safety practices, it's now. In the run up to the new Act, employers should carry out a full fleet health and safety review, says Appleby. "In terms of occupational road risk, organisations need to look at the way they manage the driver, the journey and the vehicle. They also need to consider how they monitor and review the risk."
An excellent starting point for the basics, he says, is the Health and Safety Executive's guide Driving at work: managing work-related road safety. Appleby adds that employers should consider driving training, ensure they communicate health and safety policies to staff and also check drivers' insurance, so that any fine made under a corporate manslaughter prosecution is minimised.
Culturally-specific assessments
However, it is not a good idea for organisations to rely on off-the-shelf fleet and driver risk assessment. Gavin Jones, head of risk management at lease-hire company Masterlease, says: "Employers should review assessments to check that they are relevant and specific to the culture of the company."
He adds that, whatever audit solution an organisation chooses, employers should keep an audit trail, so they can provide it to the Health & Safety Executive if necessary. Currently only half of organisations do this, according to the aforementioned Employee Benefits' research.
Finally, it is crucial that everyone knows who is ultimately responsible for what. In the past, organisations could hide behind diffused management systems, because convictions hinged on one senior member of staff being negligent. They won't be able to get away with that anymore. "Employers need to allocate and define accountabilities and responsibilities for key employees. It's also essential to monitor and audit ongoing performances," says Collins†
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If you read nothing else read this...
- The Corporate Manslaughter and Corporate Homicide Act 2007 is expected to come into force in April 2008. It creates a new offence to cover organisations that kill, and the maximum penalty under the law will be an unlimited fine.