Our oil industry is high value, high risk. When the UK’s Corporate Manslaughter Act 2007 comes into force next month, it is expected to herald the start of a new era in the world of health and safety prosecutions.
Despite the criticism the act attracted from those who campaigned for the inclusion of individual (as well as corporate) liability, there can be little doubt that its impact will still be felt in boardrooms.
In contrast to prosecutions under the Health and Safety at Work Act 1974, investigations of the new offence of corporate manslaughter will be police-led. The offence of corporate manslaughter can only be established if it can be shown that the actions of senior management formed a substantial element of the breach.
With the increase in police investigations, it is likely that individual directors and managers will be brought to the forefront of inquiries for police to obtain evidence of a breach. While individual liability is not possible under the act, in reality, the risk of individual prosecution can only increase as a result of this process.
In essence, in investigating the offence of corporate manslaughter, the police may also obtain evidence sufficient to secure a conviction of individual liability under either s.37 of the Health and Safety at Work Act 1974 or for the offence of common law manslaughter.
Those found guilty of these offences are liable for fines and, in some cases, imprisonment. An s.37 offence may arise not only where a breach occurs with a director/manager’s knowledge or acquiescence, but if the director or officer of the company ought to have been aware that a particular practice or breach occurred or was occurring.
In practice, therefore, directors and officers will be exposed if they fail to have an adequate level of awareness of procedures and practices that may give rise to a breach; it will not be a defence to simply plead ignorance to the wrongful practice or act that took place.
Senior management and officers of a company can, however, take some steps to reduce their exposure to prosecution, and in doing so, should also reduce their organisation’s exposure to prosecution for the offence of corporate manslaughter.
It is essential that health and safety are managed effectively from an executive level within any organisation, and preferably, an individual responsible for health and safety should report at board level. Senior management and officers of a company must familiarise themselves with their health and safety responsibilities, which should be considered integral to both their own and their organisation’s, success.
On health and safety issues, management should be strong and active, demonstrated by visibly communicating policies and procedures to workers in the organisation. Management should engage workers in health and safety within the workplace by providing sufficient information and training on health and safety issues. Where health and safety systems are in place, these must be objectively reviewed and assessed by management to demonstrate a desire to ensure that only effective health and safety systems are put in place.
In considering individual liability, senior management and officers must align their own responsibilities with the interests and obligations of the company as a whole. In the advent of the act coming into force, companies, as well their managers and officers, must review their existing health and safety arrangements with an objective eye.
Procedures and policies should be subject to a documented audit and review process that will provide the company with a clear evidential paper trail, demonstrating that health and safety is top of the business agenda. Companies and their managers must show that they have acted upon the results of audits and followed through with recommended changes to systems and practices.
Though the offence of corporate manslaughter is directed against the company, there can be little doubt that individual managers and directors may start to feel increasingly in the spotlight in the new regime. Best practice guidance on health and safety management for directors is available from the Institute of Directors website at
http://www.iod.com/hsguide
and provides further useful guidance in this area.
Also for more information contact health and safety partner Jan Burgess at jan.burgess@cms-cmck.com
Penelope Warne is head of energy at Cameron McKenna LLP
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