The Corporate Manslaughter and Corporate Homicide Act is expected to become law later this year, making it easier to prosecute negligent organisations that cause death. But the proposed Act doesn’t go far enough.
We believe there should be fewer exemptions regarding deaths of people who aren’t employed by an organisation but are killed as a result of its gross failings, and deaths abroad caused by UK-managed operations.
With regard to penalties, we would like to see active measures required for lasting health and safety improvements. Courts should take a broad view on remedial orders and, with advice from the Health and Safety Executive, should consider requiring convicted organisations to train senior managers to:
- use competent health and safety advice
- take steps to improve health and safety culture
- explore the possible benefits of restorative justice.
Convicted organisations will need to rebuild trust and show that they have learned real lessons.
HR and health and safety staff have vital roles to play in helping employers keep their workplaces healthy and safe – saving lives and avoiding reputational damage. When deciding culpability under the new offence, juries will consider breaches of health and safety legislation and the failure to follow guidance, and may also consider attitudes or accepted practices that allowed this.
To protect workers, the organisation and the public, employers need to ensure they have effective risk-control systems and a positive health and safety culture.
Review the risks
Organisations should be taking this opportunity to review their health and safety policies, systems and practices. They should ensure they are legally compliant as a minimum, are enforcing authority guidance, and are managing their significant risks. Obvious areas for review are those where there is a higher risk of death (working at height, workplace transport and occupational road risk).
It is essential that HR and health and safety professionals help organisations develop positive cultures, with strong leadership from senior management, so that shortcuts and poor safety behaviour are not tolerated. Everyone should be adequately trained, informed, supervised and resourced, so they work safely and report any concerns or incidents for investigation.
HR needs to actively engage workers in helping keep workplaces safe, and should regularly consult them on health and safety arrangements.
While winning ‘hearts and minds’ is imperative, deliberate or reckless acts that endanger people must be dealt with through the disciplinary process. Directors and senior managers need to fully understand their health and safety responsibilities and should have access to competent health and safety assistance.
Health and safety should affect all business decisions, including the use of procurement standards to ensure it isn’t compromised when purchasing goods, equipment or services.
Organisations convicted of the new offence can expect hefty fines and possible remedial orders and, as a result of adverse publicity and reputational damage, may lose business, as well as public, employee, investor and insurer confidence.
Main elements of the new act
- A focus on gross failures by organisations and the removal of the need to identify a “controlling mind”, which previously prevented large organisations being successfully prosecuted.
- The failures concerned will involve the way in which senior managers organise or manage the organisation’s activities, falling far below what could reasonably be expected in the circumstances.
- Companies and other corporate bodies, such as local government and central government departments, will be covered by the Act.
- Penalties will include fines and remedial orders.
By Richard Jones, director of technical affairs, Institution of Occupational Safety and Health