"There have been calls for legislation holding employers accountable for fatalities arising in the course of a work activity for many years, from the Piper Alpha oil rig disaster to the Herald of Free Enterprise to recent rail crashes such as Hatfield.
In the last few years, we have had to contend with the findings of the Richard Dykes Task Group, the Health and Safety Executive management of work-related road safety guidelines and the addition of a fleet section to the Association of Chief Police Officers’ investigation of road death manual.
The new Act merely reinforces the obligation on a company to comply with existing health and safety legislation.
It introduces a viable alternative to a health and safety prosecution, which is the current method of tackling employers whose drivers are involved in fatal accidents on the road.
One of the problems with a health and safety prosecution is that it has been seen as a fallback, not carrying the appropriate gravitas of a finding that the organisation unlawfully killed someone by the actions of their employee.
In future, a successful prosecution of corporate manslaughter will carry a great deal more stigma and no doubt adverse press and public relations.
The reality is that a jury hearing a corporate manslaughter case will still have to find that there has been either a gross breach of duty by the company or a senior manager or “gross negligence manslaughter” for failing to embed a health and safety culture within its management process.
The jury will hear evidence of how the company health and safety culture measures up against The Health and Safety at Work Act 1974 and its subsequent management regulations, codes of practice and guidelines.
The Act does refer to the liability of managers as well as company directors but in both cases neither will be at risk of imprisonment.
It is the company that will be subjected to the prosecution. There is still potential under the old common law of manslaughter for individuals to be prosecuted, but since the unsuccessful prosecution of managers connected to the Hatfield rail crash, it is very unlikely that this will occur in the future.
So what should a company do to protect themselves from the risk of prosecution?
Firstly, they must follow the guidelines of the Health and Safety Executive in assessing the risk.
This, in my view, requires the company to carry out a formal risk assessment, which must be recorded in writing.
Thereafter measures must be put in place to manage and minimise the risk, which will inevitably require a management change whereby responsibility for health and safety will have to be demonstrated from the managing director down.
Finally, an audit trail must be capable of scrutiny to demonstrate that the company is actually implementing health and safety rather than paying lip-service to it.
But will a company’s existing risk management strategies guarantee protection? The simple answer is “possibly”, provided the management culture can be demonstrated.
Is it likely that from April there will be a flood of corporate manslaughter prosecutions?
I believe it is unlikely, but I do believe that this will become the prosecution of choice, with the prospect of the managing director standing in the witness box alongside the driver.
The Act should convince all employers that they should do something about road risk.
There are proven cost benefits in doing so in reduction of insurance excesses and premiums, the human cost of downtime through injury and wasted administration time – what better reasons does a business need?"