Warning Over New Health And Safety Law
Birmingham Post: Sept 28, 2007
By John Duckers, Business Editor
Health and safety officials could be seeking a high profile "scalp" to drive home the implications of the new corporate manslaughter legislation which becomes law next year.
Darren Smith issued the warning as new figures revealed the West Midlands as being among the worst in Britain for workplace deaths showing a year-on-year increase of more than 100 per cent.
While national figures show workplace fatalities increased by 14 per cent, from 211 to 241 in the years 2006 to 2007, the number of incidents in the West Midlands rocketed from 16 to 33 over the same period.
Mr Smith, a risk and liability specialist who is a partner in the Birmingham office of international law firm Reed Smith Richards Butler, said: "I think the figures mean that the region will be under the spotlight once the new legislation is implemented in April next year.
"The authorities will almost certainly be looking to prosecute a firm with a very high profile to achieve the maximum impact following the implementation of the new law.
"Although the legislation targets companies rather than individual directors, it will come into play when there is evidence of 'organisational failure' on the part of senior management. Alarmingly for businesses, the scope for prosecution will be huge. The law covers everyone who might be owed a 'duty of care' by a company from employees and the occupiers of premises, to members of the public, such as rail passengers.
"This potentially will be a really big issue for the transport sector."
Recalling some of the major rail disasters of the recent past in which passengers have died, Mr Smith predicted that in future fatal incidents investigators will have to have one eye on how it occurred, and what steps might have been taken before the event which could have helped prevent it.
However the standard of proof is likely to be high, he says.
In order for a manslaughter prosecution to succeed it will have to be shown there was a 'gross breach' of management responsibility leading to the death, and strong evidence that standards fell far below industry standards and those of similar organisations.
Although individuals will be exempt from the corporate manslaughter charge, health and safety officials will still be able to draw on the existing health and safety at work regulations to prosecute executives and employees who are found to have contributed to a fatality.
Investigations will be wide ranging and will include enquiries into what senior managers were doing - and how much they knew that might have prevented the death - in the build up to any fatal incident.
The investigators will look at what decisions were taken and whether they were in any way reckless, whether profit was put before safety, and whether health and safety regulations were taken seriously, Mr Smith added.
If it transpires that decisions were taken which might feasibly have resulted in a death, then the firm will be in the firing line.
Although the penalties will vary according to the extent of the negligence involved, in severe cases they can be draconian. In the worst cases the law permits unlimited fines which could be calculated to put offending firms out of business. Remedial orders can also be issued, requiring convicted companies to rectify the management failures that led to any fatality.
Guilty firms will be unlikely to escape the glare of public scrutiny. The law can compel them to publish details of their convictions, and the amount they were fined, a measure intended to stimulate tough scrutiny of health and safety procedures by shareholders. Annual reports could also be used to shame offenders.
Mr Smith added: "There is clearly an opportunity for some high profile prosecutions of the kind we haven't seen before in this country.
"When you look at the worst incidents over the past few decades, no-one in authority was successfully prosecuted over the Herald of Free Enterprise sinking, or over the Piper Alpha oil platform fire, or any of the rail crashes.
"Under the existing legislation only twenty one individuals and eight organisations have ever been prosecuted for manslaughter. All of the convictions related to small ownermanaged businesses where it was obvious who had taken the decision that led to the deaths - very different to determining who took the decisions in a very large company."
The new law also closes a loophole that might have allowed directors to dump responsibility for health and safety onto a low ranking fall guy.
That would be seen as a positive decision by the board to try to evade responsibility, said Mr Smith. He says companies that take health and safety seriously have little to fear from the new legislation.