HSE/CORPORATE MANSLAUGHTER & CORPORATE HOMICIDE ACT 2007
The implications of Health & Safety legislation can be a complex area for employers to review, given the pressures of conducting their day-to-day business.
Please consider the following summaries to clarify the current legal position in relation to driver training:
Health and Safety at Work Act 1974
This statute requires you to ensure as far as is reasonably practicable, the health and safety of employees whilst at work. Employees driving on company business are considered to be undertaking a work- related activity, and the vehicle they are driving is regarded as a place of work. You also have a legal responsibility to ensure that others are not put at risk by your organisation's work- related activities.
Management of Health and Safety at Work Regulations 1999
This statutory instrument requires you to carry out an assessment of the risks to the health and safety of your employees whilst at work and to others who may be affected by their work- related activities. You are required to review this risk assessment periodically.
The Corporate Manslaughter and Corporate Homicide Act 2007
 Changes to the corporate manslaughter laws which came into effect on April 6th 2008 now mean that companies whose staff are involved in serious accidents could be liable for gross negligence.
For the first time, companies and organisations can be found guilty of corporate manslaughter as a result of serious management failures resulting in a gross breach of a duty of care.
This is a new statutory offence. In summary, an organisation is guilty of the offence if the way in which its activities are managed or organised causes death and amounts to a gross breach of a relevant duty of care to the deceased. A substantial part of the breach must have been in the way activities were managed by senior management.
Prior to the new offence, there was a key defect in the law: organisations could only be convicted of manslaughter if a “directing mind” at the top of a company, such as a director, was also personally liable.
The new law allows an organisation’s liability to be assessed on a wider basis, providing a more effective means of accountability for very serious management failings across an organisation.
The new offence is intended to complement, not replace, other forms of accountability such as prosecutions under health and safety legislation and is specifically linked to existing health and safety requirements, for example, the Health & Safety at Work Act 1974 and the Management of Health & Safety at Work Regulations, 1999, as outlined above.
The offence will support well-managed organisations by targeting those which cut costs by taking unjustifiable risks with people’s safety.
Prosecutions will be brought against the organisation itself and not specific individuals.
It is important to note that individuals can already be prosecuted for gross negligence manslaughter and for health and safety offences. The Act does not change this and prosecutions against individuals will continue to be taken where there is sufficient evidence and it is in the public interest.
Organisations will be represented by their lawyers in court, although individual directors, managers and other employees may be called as witnesses.
Penalties - conviction of the new offence can lead to:
- A fine - no upper limit.
- A publicity order, requiring the organisation to publicise the fact of its conviction.
- A remedial order - organisation to address the cause of the fatal injury.
Proposed Penalties over the Corporate Manslaughter Act
Claimant Solicitors are intimating that firms found guilty of the new offence of corporate manslaughter could be fined as much as 10% of their annual turnover, according to the Sentencing Advisory Panel (SAP) – an independent body sponsored by the Ministry of Justice that advises the Sentencing Guidelines Council.
By way of example, for a first offence of Corporate Manslaughter where the defendant has pleaded not guilty, the SAP proposes a starting point of 5% of annual turnover, based on an average taken over 3 years.
Taking into account any aggravating or mitigating factors, the court should ultimately arrive at a figure between 2.5% and 10% of turnover, or more if there are previous convictions or other serious aggravating factors.
The Cost of Corporate Manslaughter?
Please consider the following examples in relation to driver related fatalities:
- Network Rail was fined £3.5 million after the Hatfield train derailment in 2000 in which 4 people were killed. If it had been fined 10% of its latest annual turnover (2008), the fine would of been approximately £600 million
THE HEALTH & SAFETY (OFFENCES) ACT 2008
Changes in the levels of penalties by the Health and Safety (Offences) Act 2008
The Health and Safety Offences Act 2008 is a new piece of health and safety legislation that gained Royal Assent on 16th October 2008. It came into force on 16 January 2009 and gives the courts greater powers of sentencing, including increases in the fines for those who breach health and safety legislation.
This Act amends Section 33 of the Health and Safety at Work Act 1974, leading to raises in the maximum penalties available to the courts in respect of certain health and safety offences.
The Act has progressed relatively unnoticed by the business community despite the potentially serious ramifications for those with any responsibility for Health & Safety at Work.
The implications of the Health and Safety Offences Act 2008 are that it:
- widens the range of offences for which an individual can be imprisoned
- increases the length of prison sentences in the Magistrates’ Courts from six months to two years
- increases the maximum penalties that can be imposed for health and safety regulation breaches in the lower courts up from £5,000 to £20,000
- make certain offences which can currently only go to trial in lower courts triable in either the lower or higher courts
The idea is that appropriate sentences can now be set by the courts at a level that will help to deter some of the businesses that do not take their health and safety management responsibilities seriously.
No changes in duties and responsibilities
This new Act does not introduce any new legal duties onto businesses and does not change any of the existing ones. It does, however, increase the level of penalties for those businesses that are caught not complying with the existing duties.
The HSE have made it clear that their enforcement policy is set to target “those (businesses) that cut corners and gain commercial advantage over competitors by failing to comply with health and safety law and who put their workers and members of the public at risk.”
The Enforcement Policy Statement of the HSE makes it clear that prosecutions should be in the public interest and where one or more of the following list of circumstances apply:
- where death was a result of a breach of the legislation
- there has been reckless disregard of health and safety requirements
- there have been repeated breaches which give rise to significant risk, or persistent and significant poor compliance; or
- false information has been supplied wilfully, or there has been intent to deceive in relation to a matter which gives rise to significant risk
In summary, the new Act sends out an important message to those who flout the law and individuals can no longer hide behind corporations.
This latest legislation means that breaches of Health & Safety law may threaten an individuals’ liberty if, for example, an employee is hurt or killed whilst working for the employer. The Act makes imprisonment a reality for most Health & Safety offences.
In addition to making imprisonment an option for Health & Safety offences in both the Magistrates and Crown Courts, the Act has raised the maximum penalty for simply breaching health and safety regulations from £5,000 to £20,000 for most offences.
Under general Health & Safety law, any individual in the workplace, including employees, management and directors, can be found guilty of Health & Safety offences which will bring with them imprisonment as an option for punishment.
The maximum term of imprisonment is two years, which can also be accompanied by an unlimited fine.
EXAMPLE
By way of example, let’s consider an employee whose job involved driving a company van. There are a number of risks that the employer could face:
In a crash scenario, if the employee or another driver is hurt or killed, the employer could be prosecuted if it was proved, for example, that the vehicle was badly maintained or the employee was forced to work long hours making them more tired whilst driving.
The employer can protect themselves by demonstrating that they have the right safety policies in place, vehicles are properly maintained and that all personnel have received adequate driver assessment or training through bespoke health & safety courses.
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