28 February 2010 15:35 in Legal
For many years I have been banging the drum, in raising awareness of the risk to an organisation in failing to adopt a health and safety culture in respect of occupational drivers and the increased risk of prosecution.
I had formed the view that the risk of an organisation being prosecuted for Corporate Manslaughter was remote, a view that I still hold today. To date only one organisation has been prosecuted for such an offence, that prosecution has not yet been concluded so no wider conclusions can be drawn.
I have however witnessed an increase in prosecutions under the Health and Safety at Work Act 1974, which although at a lower level than a Corporate Manslaughter prosecution, can nevertheless result in considerable impact upon an organisation both in time and cost in defending the case, even if acquitted.
The Health and Safety Offences Act has resulted in the Magistrates Court being given greater sentencing powers to deal with Health and safety offences. This change was to unclog the Crown Court of these offences, in my view this will inevitable mean that prosecutors will be encouraged to launch health and safety prosecutions, in the knowledge that they are likely to be dealt with expediently through the Magistrates Court, rather than their laborious passage through the Crown Court.
Magistrates now have the power to impose fines of up to £20,000.00 in cases before them.
The Sentencing Guidelines Council has now issued a guideline in respect of the level of fines that should be imposed by the Court on a conviction for Corporate Manslaughter, or a breach of the Health and safety at Work 1974, commonly Sections 2 or 3.
As from the 15th February 2010 if an incident results in a death, the fine imposed for Corporate Manslaughter will be “Seldom less than £500,000.00 and may be measured in millions of pounds”
In respect of a breach of the Health and Safety at Work Act 1974 the fine will be “Seldom less than £100,000.00 and may be measured in hundreds of thousands of pounds or more”
There had been previous talk that the fine would be in the form of a `tariff` based upon the turnover of an organisation, this in my view would have been unworkable in cases where the organisation is not one where it has a `turnover` in the accepted sense for example public bodies, emergency services and health trusts. Although the `fine fits the crime` approach still finds favour in the Guidelines, the suggested minimum fine will make the Courts role simpler.
In addition the Court can impose Remedial Orders in respect of the organisations Health and Safety practices and in cases of Corporate Manslaughter, Publicity Orders requiring the organisation to publish information in respect of the conviction such as the details of the conviction and fine imposed. Both can result in collateral damage to an organisations reputation.
The Guidelines set out the factors which the Court should take into account when considering the seriousness of the offence, these include, how foreseeable was the risk of injury, how far short of the standard did the Defendant fall, how common was this breach within the organisation and finally how far up the organisation did the breach go.
There are also aggravating factors which the Court must take into consideration, these include, was there more than one death or an additional serious injury, failing to heed warnings or advice from officials or other persons, ignoring near misses and cost cutting at the expense of safety. Any one of these factors will see the fine increase dramatically.
On a brighter note there are mitigating factors and these will be where the organisation has a good health and safety record previously, where they had adopted a responsible attitude to health and safety, where they had commissioned expert advice and where affected employees had been consulted.
It has been very difficult to date to put a price on getting this wrong, these Guidelines now set out in stark relief that at the bottom end of the spectrum a simple health and safety breach could cost an organisation up to £20,000.00, one involving a death could be a minimum of £100,000.00 or £500,000.00 if convicted for Corporate Manslaughter, the sky is the limit on a maximum fine.
I would advise organisations using occupational drivers to heed the Guidelines advice and adopt a responsible attitude to health and safety and take expert advice, using will protect you from the spectre of prosecution and if the worst happens, a fully compliant risk assessment will provide you with mitigation towards the likely fine, the best insurance you can get.
If you have a legal question for Faithful or a subject you would like him to tackle, email gareth.roberts@bauermedia.co.uk
Author: David Faithful, consultant solicitor with Lyons Davidson
Comments (0)
28 February 2010 15:15 in Grey Fleet
So what do you want to know about your so called ‘grey fleet’? Perhaps there is another question you may want to ask first, “How much do I need to know?”
There is, you may be pleased to learn, a bottom line: If someone is driving on company business their employer has a duty of care for recording, providing information, risk assessing and giving appropriate training, under the Health and Safety at Work Act 19\4.
This duty applies when employees are undertaking driving for work, the grey fleet! So if you have a grey fleet, you need to start considering the risks involved with them driving on behalf of your company.
It’s that ‘r’ word again! As Head of Training for IAM Fleet and Drive & Survive I find that action is often taken when the “suddenly’s” have queued up like busses and all come at once, which is a shame, as it really can be avoided.
Each year thousands of people are killed or seriously injured while driving on company business and could result in legal disputes, particularly since the Corporate Manslaughter and Corporate Homicide Act came into force in 2007. When you look at it like this, it really is worth addressing, now!
It seems to me that even though there’s been a lot of media attention about grey fleet, many organisations are still failing to get the message across to their own
employees using their own cars for business’ that they have a legal responsibility for ensuring that any vehicles driven for business are legally compliant. There is still very much an ‘out of sight, out of mind’ culture and this needs to change.
I’d urge Fleet Managers to conduct a grey fleet analysis and implement policies governing grey fleet. You never know it could even reduce insurance claims dramatically.
There are several tool kits out there that can help. The trick is to choose one that can be followed later by an intervention that can change behaviour. After all why create more admin if it doesn’t change behaviour?
And if none of that has convinced you, then let me leave this with you. Right now hundreds of cars will be on the road today being driven with dangerously low engine oil levels, illegal and dangerously bald tyres, perhaps even driving without and MOT or no hands free kit. All these can pose a serious threat to the safety of driver, passengers and other road users. Really all these drivers are ticking time bombs, question is do you really want a ticking time bomb in your fleet?
IAM Fleet and Drive & Survive www.iam.org.uk 0870 1286500
Author: Simon Elstow, Head of Training IAM Fleet and Drive & Survive
Comments (0)
27 February 2010 20:10 in Risk Management
The Health and Safety (Offences) Act 2008, which came hot on the heels of the Corporate Manslaughter and Homicide Act 2007, acted as a stark reminder for many companies to focus once again on Health and Safety. It is important to remember that work-related road incidents account for more than 1,000 fatalities each year making it the single largest cause of occupational fatalities in the UK.
In crude terms, the Corporate Manslaughter Act seeks to remind us by threatening the organisation with large financial penalties; the Sentencing Council (SGC) stated that the law should expect the same standard of behaviour regardless of company size. “Smallness does not by itself mitigate and largeness does not by itself aggravate these offences”.
The Health and Safety (Offences) Act takes a different approach, as it targets individuals rather than organisations and is part of a growing legislative trend that can make individuals inside an organisation more accountable.
The Council will be reporting the results of their consultation shortly. However key questions arise: Will the spectre of a fine that could break many companies motivate a Board to take action? Or will it be the fear of time behind bars that will encourage people at all levels in the organisation to make changes and push their companies to act? Time will only tell which of the two threats is the more effective.
Telematics is increasingly being used across businesses to administer risk-management – our blog will be updated over coming weeks with the Sentencing Councils recommendations, links to relevant legislation and best practices, as well as examples of telematics technology in action…
Author: John Wisdom, Sales and Marketing Director, Cybit.
Comments (0)