Corporate killing: lines of defence

Mark Tyler | Feature | HSW
16.10.2007

The planned date for the Corporate Manslaughter and Corporate Homicide Act to take effect is 6 April 2008. That allows plenty of time for the police and enforcement authorities to organise new investigation procedures and train staff.

But what about companies and other organisations subject to the Act? How should they be using the time before its implementation and what plans do they need to help safeguard themselves in the event of a fatality?

The purpose of the Act is to provide a more effective - and more stigmatising - sanction for death caused by gross negligence in the way organisations are managed or organised. This is specifically aimed at failures at senior management level, not those due merely to the casual negligence of employees.

As the government's regulatory impact assessment for the reform process pointed out, the provisions in the Act do not in any way change individuals' or organisations' legal obligations and so do not impose any new compliance burdens.

Instead, the Act will "require the jury to consider the extent of health and safety breaches in determining whether the organisation had been grossly negligent so that the standard is explicitly linked to health and safety legislation. This ensures the link between the two, and the fact that no new standards are involved is beyond doubt".

This presents a unique challenge. Unlike other substantial legislative changes, such as the introduction of the health and safety "six-pack", the Work at Height Regulations or the revisions to the CDM regime, there are no new duties to analyse, no additional procedures to adopt, and no extra monitoring for compliance. Health and safety managers' and advisers' standard techniques for change management will be little use here.

Check back

An important factor for juries and a high-risk factor for organisations will be tolerance of unsafe working practices. All safety-conscious organisations will naturally want to review their state of compliance in the coming months. This will be a time for re-evaluating safety-critical activities and ensuring you haven't overlooked any action points from previous reviews.

But this is strictly a short-term approach. Going forward, senior management will need to be constantly vigilant, because their "attitudes, policies and systems" (the words in the Act) could suddenly come under the most intense scrutiny in the event of a fatal accident.

Crucial to any strategy for minimising the risk of prosecution under the Act will be basic safety management systems. The absence of a functioning system, whether it's based on the model in the HSE's HSG 65 - Successful Health and Safety Management (available from www.hsebooks.com, priced £12.50) or another set of procedures, leaves an organisation vulnerable to criticisms which are relevant to a jury's considerations. Prosecutors can be expected to labour to juries the importance of such systems and how their absence means senior management cannot control safety performance.

Conversely, evidence that safety management systems were well designed and properly overseen by executives will be powerful evidence, not just in the defence of corporate manslaughter cases but also for dissuading the Crown Prosecution Service from bringing charges in the first place. In one case where a director was prosecuted over the death of an employee, an expert report on this issue, favourable to the defence, from a past president of the Institution of Occupational Safety and Health (IOSH), stopped the prosecution in its tracks.

Making a case

The figure on the following page represents in a simplified way the main elements of the offence of corporate killing that a prosecution might have to prove its case to a court. (In reality, some of these elements would need more sophisticated analysis and subdivision into issues which the jury would have to address on the evidence of the individual case.)

Some elements of the offence (shown in green) will be generally straightforward and uncontroversial: the immediate cause of death was a fall from a scaffold, for example, and the defendant company owed a duty of care to its deceased employee.

The issues picked out in blue are the more debatable ones, and the ones on which the prosecution and defence will both concentrate their evidence and advocacy to persuade a jury. Was there a breach of health and safety regulation in the erection of the scaffold? How serious was the risk of a fall? Was there a casual attitude to safety? Did the defendant's business have a pattern of unsafe practices? Above all, did the way the company's senior management  acted or organised the business amount to a substantial element in the breach of the duty of care it owed the employee?

This element of senior management failure is key to the offence and essentially what is intended to demarcate corporate manslaughter from a "normal" offence under the Health and Safety at Work Act in cases involving fatalities.

It is axiomatic that a safety management system based on HSG 65, or its cousins the occupational health and safety management systems guide BS 8800 and the international OHSAS 18001 specification (see case study on page 16 of this issue), is intended to control risks comprehensively. The whole system of management is meant to prevent every event or failure in the chain leading to the fatality as shown in the illustration. It seems artificial to single out parts of the system for particular attention.

Inevitably though, any corporate manslaughter investigation by the police and other authorities will home in on the roles played by members of senior management (once the key individuals have been identified) and their collective behaviour, in an attempt to connect these back through the chain to the fatality.

What this suggests is that any plans to control the legal risks arising from the Act should focus on:

• the organisation of senior management
• the processes of delegation
• the leadership they exercise
• their arrangements for performance monitoring, review and auditing.

A good starting point for any review of senior management's effectiveness is the opening section generally found in organisations' statutory written health and safety policies. There's a lot of variety in the way bodies describe the "organisation and arrangements" for carrying out their policies. In safety-critical industries, such as rail, there are good examples of individual and collective responsibilities being carefully mapped, where senior managers' job descriptions set out in detail what is expected of them.

But it's fair to say that, in other sectors, most health and safety policies don't go into enough detail in defining the duties, accountability and authority of key posts to provide the foundations of a solid corporate manslaughter defence.

The delegation of responsibilities and powers by directors has, in the past, arguably been an obstacle to successful prosecutions. In fact, the reasons for past failed prosecutions are complex, but delegation undoubtedly could insulate the "controlling minds" who had to be shown to be guilty of gross negligence personally under the old common-law offence.

Who is senior?

The new Act does not focus on the most senior level of organisations in the same way that the common-law offence of corporate manslaughter did. Instead it permits an examination of the conduct of senior management generally in making decisions about or controlling the whole or a "substantial part" of an organisation.

The delegation of responsibility for an organisation's divisions or sites may well be critical in some cases: a prosecution might be brought on the basis that the plant manager or management team of a chemical plant belonging to a multinational company was the "senior management". It's an open question how far down into line management seniority extends for the Act's purposes.

Delegation under the new law now perhaps becomes a factor of increased risk to organisations. Officers investigating workplace deaths will obviously be alert to evidence of managers failing to carry out duties properly that they were clearly allocated. But in interviews with managers, they are likely to want to explore any gaps, deficiencies or fragmentation in the way collective responsibility is structured.

This might be reinforced by the natural tendency of an individual (perhaps interviewed under suspicion of having committed a personal offence) to deflect criticism by highlighting limitations in the authority or resources available to them to take the actions their duties required.

As HSG 65 says, "Organisational factors have the major influence on individual and group behaviour, yet it is common for them to be overlooked during the design of work and when investigating accidents and incidents".

Health and safety professionals are unlikely to be experts in this area, but they should be stressing its importance to senior management, and looking for ways to contribute to improvements, possibly redeploying their skills in hazard identification and risk assessment outside their usual territory to test weaknesses in organisational factors with accidents in mind.

Weakest link

In one of the early prosecutions under the Act, it's very likely that the following question will be put to a senior manager in the witness box: "It is correct, isn't it Mr Brown, that you had no formal health and safety training or qualifications whatsoever?"

After answering that he has not, the witness will be led through a further series of questions designed to obtain concessions that he could not therefore have had a firm grasp of the organisation's duties of care, or the textbook management tools available for controlling risks or monitoring performance.

Once the prosecution has extracted further concessions that Mr Brown only now understands the significance of precautions that could have avoided the death, the defence case may be all but lost.

Many senior managers (and probably most at director level) have at best only an elementary training in health and safety beyond any they might have had for operational purposes in more junior positions.

We lack a culture of formal qualifications for directorships, but there are good reasons to insist that executives at senior levels undergo training, not least the requirement in the Management of Health and Safety at Work (MHSW) Regulations that all employees are trained adequately for their tasks.

OHS professionals need to advise on (and possibly help devise) appropriate safety courses. A starting point is IOSH's Safety for Senior Executives course, which is available from some providers with enhanced legal content and discussion of individual legal responsibilities. Once executives have this basic knowledge, more advanced training needs to be tailored to the organisation.
Courses in a seminar format, using real-life case studies from the organisation's own experience, can work well.

Managing complexity

Even the best-run organisations are vulnerable to undetected failures in their systems and control measures. Capturing, processing, communicating and retaining knowledge in complex organisations can be extraordinarily difficult.
The report of the independent Safety Review Panel into BP's Texas City refinery accident in 2005 (covered in HSW March 2007, page 10 and available at www.safetyreviewpanel.com) shows this difficulty can conceal significant dangers and expose directors and other senior managers to criticism not for what they failed to do, but for what they failed to know.

Monitoring and audit form the basis of verification of compliance. A prosecution might not succeed where the verification process has, through mere oversight, failed to spot a danger. But the absence or poor handling of verification processes might help persuade a jury to convict, bearing in mind that monitoring is an explicit obligation continued in the MHSW Regulations. (Auditing is not statutory outside safety case regimes, but it does feature in published HSE guidance such as HSG 65).

Chapter 5 of HSG 65, and the HSE's Guide to Measuring Health and Safety Performance (www.hse.gov.uk/opsunit/perfmeas.pdf), offer guidance on performance monitoring techniques, as does Chapter 10 of Tolley's Workplace Accident Handbook (reviewed in last month's HSW and available from http://books.elsevier.com/elsevier/?ISBN=9780750681513 priced £39.99).

The subject of auditing is less well developed, and even the basics of who should conduct audits is interpreted differently in various regulations and HSE guidance documents. Some of these suggest audits can be carried out by the organisation's own staff, others not.

There is a trend towards independent third-party auditing for large organisations. This is the kind of assurance that directors from a financial background find familiar and comforting, but safety advisers must expect to be challenged on whether external auditing is worthwhile and will afford additional protection against prosecutions under the Act.

Also expect the related question on whether the organisation should undergo third-party auditing for registration to OHSAS 18001, or certification under some other standard or scheme. Pressure for accreditation could come from an enthusiastic director, but in particular from external stakeholders trying to reduce the financial or reputational risk of a prosecution under the Act. They may not fully appreciate the pros and cons of this approach and its potential for giving a false sense of security.

If there is one final lesson the Act teaches it is this: the "clunking fist" of the criminal law is set to come down with its full force in an area of law which has hitherto been largely the preserve of the health and safety fraternity. OHS professionals are likely to have to acquire broader risk management skills, and to forge closer relationships with their employers' lawyers, to meet the new challenges they face in the future.

How to prepare for the Act

• Identify the activities where the hazards make you most vulnerable to serious accidents. Review the risk assessments thoroughly, but also the written safe systems of work.  
• Revisit all the actions and recommendations from recent audits, accident reports, HSE visits and health and safety committee meeting minutes, looking for items which have not been actioned. Address anything which could be portrayed later as a warning or advice to management that there were "accidents waiting to happen".
• Push for an opportunity to give a presentation to the board on the new Act to explain its implications. Consider doing this jointly with legal advisors to really stress the connection between safety management systems and minimising criminal liability risks.
• Follow this up with a "leadership" project which begins with formal training for all senior managers. Develop further programmes based on published guidance. 
• Look for measurable improvements in safety culture among senior managers. See the sample questionnaire and other guidance at www.hse.gov.uk/humanfactors/comah/07culture.pdf