DIRECT WORKS FORUM 10 June 2008 Andy Ballard

COMMON LAW MANSLAUGHTER Effectively – Death by gross negligence Test – (a) was a (common law) duty of care owed to deceased (b) was a significant breach of that duty the cause of death? (c) if so, was it, ie; having regard to the risk of death, gross negligence and therefore a crime “Was the defendant’s conduct so bad that it amounts to a criminal act or omission”

The New Law - Maria Eagle (Parliamentary Under-Secretary, Ministry of Justice ) “The Act will make it easier to prosecute Companies who fail to protect people”

THE NEW LAW An organisation is guilty of an offence if the way in which its activities are managed or organised— (a) causes a person’s death, and (b) amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased. An organisation is guilty of an offence under this section only if the way in which its activities are managed or organised by its senior management is a substantial element in the breach.

CORPORATE MANSLAUGHTER Act came into force on 6 th April 2008 New Offence where duty of care owed by / when acting as –  Employer  Occupier of land  Supplying goods or services  Constructing or maintaining buildings, infrastructure of buildings  Engaging in other commercial activities

CORPORATE MANSLAUGHTER Test is - gross failing on part of its senior managers, to take reasonable care for the safety of its workers or members of the public that caused a person’s death Easier than directing mind test But must be causal link between failure and fatality Penalty – unlimited fine

CORPORATE MANSLAUGHTER – “SENIOR MANAGEMENT CONTRIBUTION” Persons who play a significant roles in the making of decisions about how the whole or part of the organisation’s activities are to be managed or organised or The actual managing or organising of the whole or a substantial part of those activities Persons falling in this category will have their aggregated conduct examined to see if failings substantially contributed to the breach of the duty of care

GROSS BREACH For the purposes of the Act— “a breach of a duty of care by an organisation is a “gross” breach if the conduct alleged to amount to a breach of that duty falls far below what can reasonably be expected of the organisation in the circumstances”.

CORPORATE MANSLAUGHTER – KEY ELEMENTS Is there a gross breach of a duty of care? Jury to consider –  failure to comply with H & S legislation  the seriousness of that failure  how much of a risk of death was posed by it  the extent to which there were attitudes, policies, systems or accepted practices in place that were likely to have encouraged the failure or produced a tolerance of it

CORPORATE MANSLAUGHTER – EFFECTS Greater focus on individuals who are senior management - more interviews of management Focus on Policy making & implementation Prolonged Police investigations No personal prosecution for corporate manslaughter but Section 37 more likely and common law remains Crown immunity greatly reduced “Culture” crucial

CORPORATE MANSLAUGHTER Only to apply to deaths in UK – but for how long? Longer investigations by police before handed over to HSE Conflict for in house lawyers New penalties including remedial & publicity orders Substantial damage to reputation

Checklist – How exposed are you to a prosecution? Out of date policies and procedures Inappropriate policies and procedures Insufficient resources allocated Decision based solely on financial considerations Too much emphasis on roles further down the management chain

Checklist – How exposed are you to a prosecution? Lack of top level commitment Perception that health and safety is down to employees / health & safety department Health and safety not seen as an integral part of what you do An irresponsible approach to health and safety A laissez-faire, complacent culture

HOW TO COMPLY Institute of Directors and HSC joint publication – ‘Leading health and safety at work – Leadership actions for Directors and Board Members’. Essential principles:  Strong and active leadership from the top  Worker involvement  Assessment and review

PRINCIPLE 1 - PLAN Principle 1: Plan the direction for health and safety Set by the Board Members More than just a document – needs to be an integral part of the organisation’s culture The Board will need to be aware of the significant risks faced by their organisation Policy should set out who is responsible for safety Agenda topic at board meetings

PRINCIPLE 2 – DELIVER HEALTH & SAFETY Adequate resources for health and safety Competent health and safety advice Risk assessments Involvement of staff Regular health and safety meetings Discipline of staff

PRINCIPLE 3 - MONITOR Recognise importance of preventative action including refresher training, absence/accident recording, maintenance Periodic audit of risk controls and effective monitoring Procedures to implement new and changed legal requirements Regular reporting of health and safety information to board

PRINCIPLE 4 - REVIEW Formal boardroom review to establish effectiveness of health and safety systems Review of near misses Remedial action to address weaknesses Celebrate good results

FURTHER CONSIDERATIONS Obtain and consider all relevant health and safety guidance Industry standards and peer organisations Enforcement regime for health and safety issues – employment contracts, disciplinary records. Budget for health and safety. Review hierarchy and consider who would be ‘senior management’. Is the senior management competent? Review of what happens ‘on the ground’