Corporate
Manslaughter and Corporate Homicide Act - If You Employ Lone Workers,
it Affects You.
By Craig Swallow, Managing Director, Connexion2
After
ten years in the making, the Corporate Manslaughter and Corporate Homicide
Act has added another layer of liability for organisations and, importantly,
those who run them. An employer's duty of care is not only a legal requirement
but now it must be seen to be demonstrated that a company or organisation
is doing everything practicable to protect the health and safety of
employees.
Previously,
an organisation could be prosecuted at common law for manslaughter,
although attempts to do so were mostly unsuccessful. Now the Act, when
it comes into force on 6th April 2008, will make it easier to prosecute
companies and other large organisations when gross failures in the management
of health and safety lead to death.
The Proposed New Test
An organisation will be guilty of corporate manslaughter if a gross
management or organisational failing causes a person's death. The new
offence will apply to management failings by an organisation's senior
managers - either individually or collectively. The focus has therefore
moved from the culpable individual to collective senior management responsibility.
However, individuals who commit a serious breach of a duty of care leading
to a person's death may still face prosecution and possible imprisonment
for the common law offence of gross negligence manslaughter.
Within the Corporate Manslaughter and Corporate Homicide Act a gross
failure is defined as conduct that ‘falls far below what can reasonably
be expected of the organisation in the circumstances’. In assessing
whether there has been a gross failure, the proposed law will require
a consideration of whether the organisation complied with health and
safety legislation and guidance. If a health and safety breach is established,
the jury must then consider (a) how serious was the failure, and (b)
how much of a risk of death resulted from the failure. Furthermore,
the jury will need to consider whether the attitudes, policies, systems
or accepted practices within an organisation were likely to have encouraged
or produced tolerance of non-compliance with health and safety law.
It
is estimated that more than half of UK businesses are at risk of substantial
fines under pending legislation. The legislation will mean that businesses,
as well as individuals, could be prosecuted and face unlimited fines
if management failings are judged to have caused the death of an employee
(or a member of the public). Fines for conviction under the legislation
are, like convictions for breaches of health and safety legislation,
up to an unlimited amount. However, convictions for corporate manslaughter
(corporate homicide in Scotland) will carry a greater stigma than a
conviction for a health and safety breach. The fines could be higher
and there will certainly be greater and more adverse publicity.
Lone Workers
The new legislation has helped focus attention on lone workers who are
particularly vulnerable. Changing work patterns and the need for businesses
to 'downsize' are resulting in more and more staff becoming classified
as lone workers. Employers have responsibilities for the health, safety
and welfare at work of all their employees and the health and safety
of those affected by the work e.g. contractors and self-employed people
who companies may engage. These responsibilities cannot be transferred
to people who work alone. Lone workers by definition are more vulnerable
to accident and aggression than most employees and therefore it is vitally
important that their employers develop long-term strategies in order
to protect their safety. Risk assessment should help decide the right
level of supervision, training and protective equipment that needs to
be employed.
One way of protecting lone workers is through a dedicated alarm system.
With the increasing number of personal attack alarms now on the market,
the Association of Chief Police Officers (ACPO) is reviewing its position
on their use. Many companies have been issuing lone workers with mobile
phones equipped set up with a speed-dial for staff to raise the alarm
if threatened. A mobile phone is a communications tool; it is not necessarily
an effective tool to use when faced with an aggressor or other form
of danger. Arguably, by providing a worker with a mobile phone an employer
increases the risks faced by the worker.
ACPO
has stated that no single action 'single push' PA devices should be
allowed. Instead it now says that portable PA devices should be dedicated,
not incorporate any other functionality and should have a way of dual
verifying an alarm.
Products like Identicom, which this year received the ACPO sponsored
Award at IFSEC 2007, are fit for purpose and conform to police policy.
For example, Identicom is equipped with a discrete emergency button
that activates the alarm, which opens up a voice call to a third party
whilst at the same time discreetly notifying the wearer that the alarm
has been triggered and is active. A second concealed button enables
the wearer to leave details of their whereabouts and notify their employer
when they know they are entering a potentially hazardous situation.
Prior to the Corporate Manslaughter and Corporate Homicide Act coming
into force in four months time, companies and organisations need to
review their health and safety procedures and in particular reassess
their lone worker protection strategy. In the event of a fatality, a
company's defence would be helped if the business could demonstrate
a good health and safety culture that is actively encouraged by managers.
Tel: 01909 550368
Web: http://www.connexion2.com