Since the introduction of the Corporate Manslaughter and Corporate Homicide Act 2007 on 6 April 2008 there have been five cases charged since July last year alone.
The first company to be convicted under the 2007 Act was Cotswold Geotechnical Holding in 2011, which involved a death in 2008 and it was fined £385,000. Since then there has been a total of seven companies found guilty under the new act with the Crown Prosecution Service (CPS) currently reviewing a further 56 new cases making it inevitable that further companies will be charged this year.
And it's not just the companies being found guilty. Under the Act, senior managers have been charged personally either with gross negligence manslaughter or health and safety offences – both of which can attract custodial sentences.
Not all fatalities automatically result in a corporate manslaughter offence. Companies and individuals can be prosecuted under ordinary health and safety legislation. But when it comes to sentencing, the Court will look at the sentencing guidelines for corporate manslaughter - where it states that fines for a death will be seldom less than £500,000. Imposing a high fine is the Court's way of sending a strong message to the board and shareholders for failing to comply with legislation.
The reality is that fatal accidents can even happen to companies who think they're good at health and safety, so it is important for everyone to ensure that any health and safety procedures that are in place are robust, and that you are aware of what steps should be taken should a tragic accident happen:
- It's important to drive health and safety from the top. Appoint a board member who is responsible for promoting a consistent health and safety culture as well as compliance with the law throughout the business
- Ensure to have robust yet easy to understand policies that are followed and staff are consulted on risks and how to minimise them. In addition to this, train your staff regularly and keep records of all training and refresher courses.
- If appropriate, provide occupational health services for staff and record all issuing of personal protective equipment (PPE) and training. Check PPE is used and, if not, stress the importance and benefits of its use, and keep a record of conversations.
- Assess risk at work often and log all assessments as this could be vital evidence. If there is an accident then don't overact as some accidents are just that and are not always due to failing systems. Make recommendations for change to minimise future risks.
- Any equipment needs to be regularly inspected and maintained and retain these records for a minimum of three years. An incident viewed as a minor occurrence may, over time, give rise to a claim and the records could provide valuable evidence.
- Keep an audit trail which shows that your policies are followed and that you take your duties seriously as, again, this is useful evidence for the courts.
- Most importantly, implement an emergency procedure which should be followed as soon as a serious or fatal accident occurs involving an employee or visitor to your premises. Appoint a single point of contact and a main investigating team when things go wrong so everyone knows who to contact in such a case.
- Ensure you have a panel of lawyers ready. This includes a lawyer to represent the company and other legal firms on standby to represent directors and senior managers. The company and its directors may require separate legal advice, particularly if a number of people are being investigated or questioned by the police and Health & Safety Executive.
- While you will wish to co-operate with the investigative authorities, you will also need to assess and investigate the position yourselves.
- Have your internal investigating team ready to immediately take statements from those involved; whilst facts are fresh in their memories as events can easily fade shortly after the incident, particularly if it was traumatic. Be aware that your investigation report may be disclosed so discuss how to handle this with your legal advisers.
- Consider counselling for any employees affected by any incident. The first few days after an incident can be very sensitive and stressful for all.
The company should also be prepared to release a press statement, if only to say they are co-operating with the investigation. Details and conclusions should not be shared publicly at this stage.
It may well then be business as usual as services usually need to continue. However employees should be made aware of the support on offer while the investigation continues in the background.
Legal cases involving a fatality can often take at least two years before it is known whether a prosecution will follow.
Any initial steps you take to prepare and respond to a breach in health and safety may influence and have an impact on how the remainder of the investigation takes shape.
So if there were only three things to remember to do well, it's to have in place an efficient and well recorded health & safety procedure, an internal response team that can act quickly in the event of an accident, and a team of lawyers on hand to advise and support during investigations.
But of course the most important advice is to continue to ensure that your health and safety procedures are as robust as possible to hopefully prevent you from ever finding yourself in this scenario in the first place.
Michelle Di Gioia is an associate in the Dispute Resolution Team at Gardner Leader solicitors.
