In our recent post we spoke about the way in which the Corporate Manslaughter and Corporate Homicide Act was being used against smaller business almost exclusively. We also discussed how the weaknesses present within the Act, in particular the need to identify a controlling mind within the business to hold at fault, made its application against large businesses unlikely to succeed.
This leaves us with the question of what should Directors be doing to safe guard themselves and their businesses from prosecution, something which deserves a review on this blog so here goes!
The basis of any defence will be to provide evidence that you are in fact a reasonable person and a good employer who takes the safety of their staff seriously. To be prosecuted under the act you must have fallen well below the level which could be expected of you – a gross failure or breach of duty.
Some good information has recently been issued by HSE and the Institute of Directors; read more here; http://www.hse.gov.uk/leadership/index.htm.
We can break down the base requirements for any business into three main sections;
- The role of the Board; the structure of meetings, integration of safety data and KPI’s
- The actions of individual Directors;
- Checks and audits which should be carried out on the company arrangements for health and safety.
The Role of the Board
It has long been a recommendation that the Board should appoint one member with the responsibility and skills to serve as the Director responsible for safety. This isn’t to say that it is compulsory but it is something which we would recommend to all of our clients.
This isn’t to say that this Director is now culpable for any mistakes which the Board or company makes as it still remains a joint responsibility and any Director could be held to account. Make sure that your policy details both the roles of the board as a whole and the directors within it.
Next, make sure that your board meetings effectively address health and safety issues and make it the first item on the agenda. It doesn’t have to dominate but the salient points of current issues should be covered, think of training budgets, audits, OHSAS 18000 approvals and so on.
- include safety as the first item on each meeting
- consider reports on performance including accidents, near misses, ill health and the outcomes of inspections or audits internal or by safety consultants
- consider new legislation and its impact on the business
- clearly state what you expect of Directors in the safety policy document
- Consider safety when making linked decisions to purchase new equipment or buy new businesses
It stands to reason that a director should have a reasonable level of understanding in order to make the right decisions, indeed this is often a critical point in protecting your business. Specific courses exist such as IOSH Directing Safely and these should be considered as a minimum for the Safety Director and as a good investment for any Director serving on the Board.
What isn’t reasonable is to expect that Director to keep up to date with all new and changing regulation which could affect the business, that’s best left to your safety consultants or other support and perhaps once a year an update from them would be worthwhile.
Checks and measures
Finally, make sure you have some feedback from the rest of the Board and from the business at large. Recent cases have highlighted that a Director cannot use the excuse of simply not knowing what was occurring on the ground within the business – they must make it their job to know or pay the price – is this something which you feel confident of?
Make sure that you walk the walk on safety, take actions when you see something wrong, stop a person doing something which you think could be done more safely and you’ll send a strong message to the rest of your team.
When you or your team visit sites make time to assess how things are progressing in terms of safety as well as general progress and make interventions to ensure your staff know that safety is a key part of the requirement to get things done.
When everything above is in place revisit your communication and seek to improve it. You might be responsible for the whole business but you can’t be everywhere at once. Use a safety committee or similar to make sure that risk management is integral to the business and populate it with a broad mix of positions and personalities – you’ll be surprised at what you can gain from this and the feedback you’ll gain.
- Check your contractors are working safely and have adequate insurance;
- Check your staff training matrix is up to date;
- Check your insurance remains appropriate, adequate and valid;
- Make sure that all statutory and periodic tests are in date;
- Sets some targets for improvements in terms of accidents and lost time injuries.