Accidents do happen even in the biggest and best run companies and the consequences when they do can be both dramatic and devastating.
Recent examples of fatalities in the workplace include:-
- August 2016 – Deceased died after falling 8ft from the top of a skip. The company and its director were found guilty of manslaughter. The company director was sentenced to 2 years imprisonment suspended for 2 years; the company was fined £600,000.
- July 2016 – Company fined £550,000 after 2 men died after falling into a light well that only had perimeter edge protection rather than metal railings.
- June 2016 - £1,000,000 fine in relation to the death of a young tyre fitter a decade earlier.
The corporate manslaughter and corporate homicide Act came into force on 6 April 2008. The offence of corporate manslaughter enables a company to be punished for negligent conduct that leads to a person’s death.
From 1 February 2016 new sentencing guidelines came into force. They direct Courts to consider sanctions by way of a step by step approach – primarily examining culpability, the seriousness of harm risked and the likelihood of harm.
The guidelines require an assessment of turnover in order to set a starting point. There is now a greater likelihood of custodial sentences being imposed on individuals for those found guilty of serious offences.
An example of the higher level of fine imposed for health and safety offences was Conoco Conoco Philips (UK) Limited which in 2016 was fined £3million in a case where, although no one was injured, a series of unexpected and uncontrolled gas releases occurred at one of its offshore gas installations and it was found that the company had failed to properly identify and control risks. The Judge said that the fine would have been £5million if the Company had not entered an early guilty plea and cooperated with the Health and Safety Executive.
What must be established?
For a prosecution to succeed it will have to be established that:-
- The accused had a duty of care to the deceased.
- The accused breached that duty of care.
- The breach of duty caused the death and was so severe a breach of duty as to be a crime (gross negligence).
- The accused is a “controlling mind or will of the company”.
Negligence turns into “gross negligence” if the breach of duty falls considerably below what would reasonably be expected of the organisation in the circumstances. This will depend on:
- How serious the failure was.
- How real the risk of death was.
- The attitude and policies of the organisation which lead to the failure.
- Any health and safety guidance relating to the breach.
How to deal with cases of corporate manslaughter/critical injuries
Before an accident happens:
- Consider whether your business is properly insured.
- Are all proper health and safety systems in place? Have the necessary audits been carried out and what improvements have been made?
- Are risk assumptions kept up to date and reviewed on a regular basis?
- Who is responsible for health and safety in your organisation and has all necessary training been undertaken?
- Is there an adequate health and safety budget? Is health and safety raised as an agenda item at every board meeting?
If an accident occurs
- It is essential for the company to be able to call on a law firm with expertise in handling prosecutions for corporate manslaughter or under the Health & Safety at Work Act.
- The lawyers must be prepared to “drop everything” and attend a client’s premises soon after the accident so that statements can be taken and an early assessment of the issues surrounding the accident can be made.
- Invariably the Police and Health & Safety Executive will investigate the incident. They will attend the premises where the accident occurred; take photographs of the scene; interview witnesses; and gather as much information as they can concerning it.
- A company’s health and safety and training records will be looked at closely. Questions will be asked of senior management regarding their company’s health and safety policies and procedures and how rigorously a company treated its health and safety obligations.
- Members of the legal team should have:
- Experience in dealing with high level investigations that will often attract media attention.
- They will need to give clear advice to the Company and those directly involved, often under extremely difficult and pressurised circumstances.
- They should have the ability to analyse important company documents (e.g. a company’s training documents, board minutes, contractual and technical documents if machinery is involved).
- Be able to provide a wide range of advice on, for example, insurance aspects relating to the company and its employees. They should have experience of acting in criminal prosecutions; inquests and civil claims for damages that are likely to arise following the death or injury.