FM Faculty Briefing No.10 - A special responsibility for staying safe

18 February 2009

FM Faculty Briefing No.10 The Corporate Manslaughter Act 2007 has put the law on corporate manslaughter (Corporate Culpable Homicide in Scotland) onto a new footing, as Iain Brodie explains

The introduction of the Corporate Manslaughter Act has had special implications for the practicing Chartered Facilities Management Surveyor. In its simplest form, the Act can be seen as a practical extension of existing legislation introduced to reinforce an organisation’s accountability for the management of the H&S environment. In practice it means the Act will apply where a substantial part of the breach relates to the way activities were managed by senior management. The Act tries to correct the failures of the old law by giving more importance to ‘duediligence’ systems of management and making an organisation guilty of the offence of corporate manslaughter by the way it has delivered its services or by the way its activities are managed at senior management level.

The offence will, therefore, have been committed when the way in which activities are managed causes a person’s death, and the failures to manage activities amounts to a gross breach of a relevant duty. It applies to the ‘body corporate’ and is designed to hold both public and private sector organisations to account where a life or lives are lost through negligence in a accident or incident which is attributable to the negligence of the corporate body. The offence will follow where there is a clear breach of a ‘duty of care’ by the organisation.

In effect, the law is concerned with how much ‘care’ an organisation must take and the practical application of this implies that those who decide policy and manage its application, must act with diligence to ensure that the organisation operationally conducts itself in such a way to take all reasonable steps to not expose employees and others to risk, and to deliver ‘safe systems of work’ which preserve life. It can be seen by the specific reference to ‘senior management’ within the legislation how FMs are probably more at risk by being at the leading edge in delivering their organisations operational services. It is in the design application and management of these relative ‘high risk’ activities that the operation of the Act applies.

It is also fairly clear that the high loss of life in high profile accidents such as Herald of Free Enterprise, Kings Cross, Piper Alpha and the Barrow in Furness Legionella outbreak motivated these change. Recognising this it should be remembered that the FM practitioner when either advising clients or directing or managing operational services, has to operate to a higher standard of care. This is particularly the case where service delivery is technically highly skilled or requiring in-depth specialist knowledge or expertise.

Individuals can already be prosecuted for gross negligence manslaughter and for H&S offences. The Act does not change this and prosecutions against individuals will continue to be taken where there is sufficient evidence and it is in the public interest.

It is, however, the role played by the Senior FM that will place the organisation in the front line where a death occurs, particularly senior managers that have an active role in making management decisions either at a distance from service delivery or as the senior manager directly managing the service activity either in whole or for a substantial part of the undertaking. In law ‘substantial’ means ‘more than minimal’.

Liability
Whilst the Act is very much designed to ensure that employers cannot absolve themselves of liability by abdicating their ‘duty of care’ to their advisors or consultants, it can be seen how negligent failures can place the responsibility for a breach of the Act more with the senior FM advisor or manager than

H&S law applies in all workplace environments and whilst recognising that accidents are more likely to arise in a factory than in an office, those that commission or manage services particularly building and engineering maintenance are at far higher risk category in both environments. Equally management and service provision in the logistics sector and service delivery in complex service environments such as energy centres, generator stations and hospitals, have equally high risk management profiles of liability.

Operational service
management in other service areas should not be forgotten. Legislation such as those found in the service management of food production and service delivery where the food safety legislation (both EU and UK) applies, and in the fields of transport fleet and vehicle management where Road Transport legislation has brought a new dimension to due-diligence and risk management for the experienced FM.

When an incident or accident happens involving a fatality it will be investigated by both the HSE and the Police and a ‘crime scene’ will be declared. What will the investigating body wish to look at? The simple answer is everything including:-

● Method statements and risk assessments
● H&S , risk management and other relevant specialist policies
● Relevant minutes and notes from meetings, and correspondence
● Training policies and implementation programme
● CDM and relevant tender documentation
● Accident or incident books.

The investigation will touch on all levels within an organisation from front line service staff through to the designer or specifier. Depending on the nature of the accident or ‘loss of life’ incident, individuals who have project responsibility will also be part of the investigation. For the operational manager the due-diligence framework of managing H&S in complex environments should be well understood, the HSE publication HSG65 ‘Successful Health and Safety Management’ is a good starting point and should be read, understood and put into practice. FMs should have a fundamental and clear understanding of their role and must be able to understand and apply relevant legislation.

Managing safely requires accurate record keeping, evidential based training records and the ability of the individual and organisation to demonstrate a culture which through its actions and behaviours underlines and underpins a pro-active safety conscious organisation, will go a long way to supporting the necessary due-diligence defence.

● Iain Brodie Mid Yorkshire NHS Hospitals Trust and Chair, RICS FM Executive Group