Accountable for Safety

12 February 2008

Preparing for the Corporate Manslaughter and Homicide Act coming into effect in April should be a priority for all organisations in all aspects of their activities, particularly, as Azam Butt explains, their policies towards lone workers

THE LONG ARM OF THE LAW reaches into every business in the UK, often forcing companies to review work practices as new laws aiming to promote better business working practices are introduced. Many such laws introduced by Parliament affect just one sector, however one of these new laws is set to have a blanket affect on all industries in the UK, and this is the upcoming Corporate Manslaughter and Corporate Homicide Act.

The Act has recently been sanctioned by Parliament, and on the 6th April 2008 the Corporate Manslaughter and Corporate Homicide Act will become law. The Act makes it far easier to prosecute companies by placing the weight of the employer’s duty of care to its employees firmly on the shoulders of the entire senior management. Employers will be responsible for proving that they have taken their duty of care to employees seriously. From this date companies are more likely to face successful prosecution for manslaughter, and an unlimited fine, if they are found to be in breach of this legislation.

The Act was selected for amendment following several high profile incidents, including the attempted prosecution of Balfour Beatty following the Hatfield train disaster. Due to difficulties proving direct responsibility, it was all but impossible to successfully prosecute companies implicated through negligence in the death of either employees or members of the public. Seeking to redress this, the onus of the new act for the Government revolves around the idea of employers demonstrating that they have fulfilled a ‘relevant duty of care’ to their workforce.

The version of the Act that received Royal Assent states that a relevant duty of care includes responsibility for people on the company’s business, both on and off the company premises. Under the Act, a company will be guilty of the new offence if activities that are organised by senior management result in serious injury or death, which can be established to the result of a gross breach of the duty of care it owes to its employees, the public or other individuals.

One of the main issues with the current legislation is that a company can only be successfully prosecuted if it can be proved that a senior director, that embodies the company, was aware of the policy or activity which led to death. However, establishing whether senior management were actually aware is in practice almost impossible, making prosecution very difficult. With the new Act, ignorance is no longer a defence. Although individuals will not be personally prosecuted, senior management are held responsible for the consequences of policy or practice that results in death. If found guilty. Companies and corporate bodies could face an unlimited fine, a remedial order (a court order to remedy the management failures that led to the fatality) and potentially the organisation could also be ordered to publicise both conviction and the details of the remedial order.

Employers are responsible for continuously assessing the risks that are associated with their workplaces, regardless of their location. For example, employers are responsible for assessing and controlling the risks that lone workers face where possible. Lone workers, simply by virtue of working alone, are harder to protect and are at greater risk. This sort of worker can be found across nearly every industry in the UK, and represents a considerable area of risk for employers. Lone workers are often placed in some of the most dangerous situations – from a district nurse on home visits to a traffic warden. Many professional services staff will often find themselves in a situation during their working life when they are required to travel or work remotely and on their own.

Despite the prevalence of lone working, the risks attached with it are all too often overlooked or trivialised. However, lone workers will be a key area that UK employers will need to address if they are to ensure that they do not fall foul of the revised Corporate Manslaughter and Homicide Act. The risks of lone working must be considered thoroughly in order to create a appropriate health and safety policy that will help protect both employees and the employer should the worst happen.

There were 339,000 threats of violence and 317,000 physical assaults on British workers in 2005, according to the British Crime Survey. In 2006-2007 there were 241 fatal injuries in the workplace, so the problem is a reality for many employees in the UK. For employers with a lone workforce to consider, the problem is multiplied still further, as businesses will often find they have almost no control over the working environment of lone workers.

Understandably the implications of the Act are also a big concern for the Government, who is championing the benefits it will bring to the British workforce. The Minister for Work and Pensions, Peter Hain, recently commented at a seminar in Cardiff, arranged specifically to mark the introduction of the Corporate Manslaughter Act, that injustice in the workplace would ‘not be tolerated’. Presenting to Welsh social justice think tank The Bevan Foundation, he said, “Our ambition is for every worker to have the right to a safe workplace where their interests are protected.”

It’s hard enough to control exposure to risk in a conventional workplace, let alone when workers are out and about. With the upcoming Act set to really shake up health and safety in the workplace, the lone worker segment is crying out for methods to keep them safe.

Minimising risks
So when businesses start to face-up to what the Corporate Manslaughter Act will be demanding from them, CEOs and senior management will need to examine the policies that they currently have in place to ensure that they carry out their obligation, as set out by the Act. In preparation for the introduction of the Act in April, managers are beginning to look to the available solutions and how they can best get to grips with the main issues and implications of the Act.

Getting the appropriate plans in place is crucial, and proper risk assessment, training and risk reduction policies and procedures should be implemented to ensure that risk can be identified, managed and avoided. If it can not ultimately be avoided, companies will have to look to alternative measures, such as emergency alert and request assistance from outsourced providers.

One method that presents an opportunity for employers to demonstrate that they take their duty of care to lone workers is through ensuring that they can communicate, locate and respond to lone workers in emergency situations.

When you consider the risks lone workers are exposed to, it is surprising that it is not common for workplace policy to ensure some form of solution is offered as standard for securing the personal safety of lone workers. The current advice from the Health & Safety Executive (HSE) is that companies should use mobile devices as a good a way of protecting lone workers. However, with the Corporate Manslaughter and Corporate Homicide Act on the horizon, it is likely that companies will need to do much more, using focused solutions geared to support lone workers exposed to potential emergency situations.

It’s not just the HSE that believes protecting lone and remote workers with personal devices can ensure safety in the workplace. At last September’s Labour Party Conference, Health Secretary Alan Johnson highlighted that over 58,000 NHS staff were physically assaulted by He revealed plans for new measures to protect NHS staff working alone and in vulnerable situations as part of a £97m boost to the NHS security budget. The Government is investing £29m of this in equipping lone workers in the NHS with personal safety devices.

Ensuring the personal safety of the workforce is about more than providing workers with a token mobile phone. For a solution to be worthwhile, employers must consider the most important aspects of protecting the lone workforce, such as identification, location and two-way communication. The solution needs to be tailored so that employers are better able to fulfil their duty of care to lone workers. Without addressing these issues companies may fall foul of accusations of ethical neglect and malpractice, leaving them wide open to prosecution under the incoming Act.

Action
In a few short weeks the Corporate Manslaughter and Corporate Homicide Act will be law. Hopefully the majority of employers will be able to demonstrate that they can fulfil the relevant duty of care, should the need arise. In reality this may not be the case, yet companies that neglect this could find themselves in hot water. In the event of prosecution under the Act, the culpability of a company will not just be decided on whether the H&S policies in place measure up to those expected of companies.

Senior management must also take corporate insurance into consideration, as increased likelihood of successful prosecutions under the Act will almost certainly impact upon premiums and could render inadequate policy irrelevant as these companies could become uninsurable.

This new law will take a much wider view and will take the management and organisation of a company’s activities into account. It is also not reliant on one particular individual being found guilty of gross negligence or manslaughter. The courts will now be able to consider the wider corporate structure and will look collectively at the actions (or failings) of the company’s senior management. Companies only paying lip-service to their employees’ safety will be held accountable across the board.

● Azam Butt, Marketing Director, Romtrac, a provider of lone worker personal safety and workforce management solutions