Corporate Manslaughter could become the prosecution of choice
(PRWEB) May 5, 2010
In January 2009, the implementation of the Health & Safety (Offences) Act increased the penalties available to the Court for breaches of the Health and Safety at Work Act 1974 (HSWA) and Management of Health & Safety at Work Regulations 1992, (updated 1999) to further stress the importance of ensuring every organization takes a proactive approach towards Duty of Care. UKLeasingandContractHire.com has found there is a distinct lack of understanding surrounding these new regulations and is working to address the possibly frightening consequences of ignorance of these new laws. The key elements of the 2008 Act are:
- To raise the maximum fine available to the Magistrates Court to £20,000.
- To make imprisonment an option in the Magistrates Court as well as the Crown Court.
- To make certain offences triable in either the Magistrates or Crown Court.
Companies are now responsible for ensuring that all vehicles that are used on company business are fit for purpose and are in a roadworthy condition. The Law holds no regard as to whether the car is owned by the company or an employee privately. If personnel are driving on company business then the law applies.
It's easy to think that your employees do not drive on company business. But typical circumstances can conspire against a company that takes this simplistic view. For example; an administrator is sent to the Post Office on an odd occasion and they use their own vehicle. This is driving on company business. Likewise if an employee is asked to attend a company seminar away from their place of work, say at a local hotel. The individual leaves their home in the morning and drives straight to the hotel, they are instantly deemed to be driving on company business.
An employer is responsible for carrying out the necessary checks to ensure that individual drivers are driving 'legally'. For example you must make regular checks to ensure that an individual driver is legally licenced to drive. For example checks are required to make sure that the employee is not driving whilst banned, hold a valid UK Drivers Licence or that they do not have a medical condition that bars them from driving legally.
It's a common trap to think that by encouraging individual drivers back into their own privately owned vehicles that the Duty of Care legislation has somehow been side-stepped. Unfortunately this is not the case and it can lead to a greater risk of prosecution to the Company and its Directors.
It is often the case that by disposing of fleet vehicles and putting employees back into their own cars leaves the company at an even greater risk of prosecution.
The responsibility for the condition of privately owned vehicles used whilst carrying out company business lies with the employer. The risk to the company is worsened because the monitoring of private cars and assessing whether they are fit for purpose is that much harder. A fleet manager cannot easily see if a private car has been serviced correctly and in accordance with manufacturer's guidelines. There is no indication whether the vehicle is running on legal tyres or has unrepaired damage. The driver might be using unapproved ways of looking after the maintenance of a vehicle. They might employ a next door neighbour who fixes vehicles on the side to carry out a service or repair. Whereas vehicles on lease or contract hire are usually better managed, new cars with better safety standards.
As a consequence an employee might well find themselves as a passenger in a vehicle that is a danger and not roadworthy. Is this driver insured for driving whilst on business? The vehicle may well pose a risk to the driver, the passengers or the public at large so what if that vehicle is involved in an accident resulting in a serious accident or a fatality? A fleet manager has little or no control over this type of vehicle.
The key for any employer is to be compliant with all legislation and Government Department advice in terms of vehicle related health and safety ensuring that all processes and procedures are robust, followed, managed and audited. The key rules and regulations that affect occupational road risk are:
- Health & Safety at Work Act 1974.
- Management of Health & Safety at Work Regulations 1992, updated 1999.
- Health & Safety (Offences) Act 2008.
- Provision & Use of Work Equipment Regulations 1998 (PUWER).
- Reporting of Injuries, Disease & Dangerous Occurrences (RIDDOR).
- Working Time Regulations.
- Road Traffic Act 1988.
- ACPO Road Death Investigation Manual.
- HSE Guidelines – Driving at Work – Managing Work Related Road Safety.
- The Health Act 2006.
- Road Safety Act 2006.
- Corporate Manslaughter and Homicide Act 2007.
It is believed that Corporate Manslaughter will become the ‘prosecution of choice’ where employees are involved in fatal accidents. The Bill was finally passed on 23rd July 2007 and came into effect on 6th April 2008. The Corporate Manslaughter and Homicide Act does not make individual directors responsible for manslaughter unless they are separately liable under the existing common law. Under the new Act a company will be guilty of corporate manslaughter if its activities cause a person’s death because of the grossly inadequate way in which the company’s activities are managed or organized. This could lead to a fine of up to 10% of turnover coupled with a publicity order at the discretion of the judge. The Act will require a court to consider whether the way in which senior managers organized the company’s activities caused the person’s death. Senior managers could include strategic and operational managers, with day to day responsibility for an employee’s activities.
Compliance with existing health and safety legislation, in all aspects of employment, will be paramount under the Act, as well as having a safety culture within the company. In 2010 The Sentencing Guidelines Committee advised that companies and organizations found guilty of corporate manslaughter should face fines which may reach "millions of pounds and should seldom be below £500,000. For other health and safety offences that cause death, fines from £100,000 up to hundreds of thousands of pounds should be imposed. Factors increasing the seriousness of the offence identified by the Council include the foreseeability of serious injury, whether non-compliance was common and widespread within the organization, and how far up the organization responsibility for the breach went.
Director’s Liability. The focus and responsibility for occupational road risk lies firmly with company directors. The Corporate Manslaughter Bill is designed so that a Director or Company can be prosecuted where the following applies: The Common Law defines the liability for work related deaths to be – “Gross negligence manslaughter – breach of duty so grossly negligent that the defendant can be deemed to have such a disregard for the life of the deceased that it should be deemed criminal as deserving of punishment by the State”
- Negligence - can include failure to warn of risks.
- Breach of Statutory Duty – imposed by Health & Safety regulations unless the regulations provide otherwise.
- Reverse Proof – “It shall be for the accused to prove that it was not practicable or not reasonably practicable to do more than was done to satisfy the duty or requirement, or that there was no better practicable means than was in fact used to satisfy the duty or requirement”.
- The Director’s Liability applies equally to employees and other people who may be affected by their employees’ work activities.
Taking into account the requirements detailed above we recommend that every employer with more than five full time employees driving on company business reviews its approach towards Health & Safety (H&S) matters to ensure its employees are protected and the risk of prosecution to the organisation and individuals is minimized.
For more information visit UK Leasing and Contract Hire.