PERSONAL VIEW |
CORPORATE MANSLAUGHTER |
 David Faithful |
The likelihood of a company being prosecuted for at-work driving failures under new corporate manslaughter and corporate homicide legislation now making its way through Parliament is remote.
Suggestions that fleet operators could face jail for their failure to manage occupational road risk are fiction not fact. In fact, the outcome of any prosecution under the new act when it becomes law – probably towards the end of 2007 at the earliest – will be companies facing unlimited and possibly multi-million pound fines and a heap of potentially highly damaging and embarrassing publicity.
But, given my view – and, I confess, it is a view that has moved away in the last five years from prison risk, as the much-talked-about legislation has been watered down from making company directors personally liable for corporate manslaughter – there is now a perception among corporate lawyers that the absence of director penalties in particular is giving companies the green light to walk away from their responsibilities in respect of managing occupational road safety.
Far from it. The Bill makes it clear that “companies who have dismally failed to pay proper attention to people’s health and safety are bought to justice”. Consequently, the proposed new law will enable the courts to consider the overall picture of how an organisation’s activities are managed by its directors, rather than focusing on the actions of one individual. Indeed, the new offence will look at the overall management of an activity within an organisation.
Therefore, far from giving directors carte blanche permission to walk away from their managing occupational road risk responsibilities, the legislation underlines the importance of putting in place a series of risk reduction measures, which is exactly the same obligation created under existing health and safety legislation. It is clear that a company that fails to take any actions in respect of managing their at-work drivers and subsequently finds an employee involved in a fatal crash will face prosecution under either the new law or for a health and safety breach.
However, a company that has put in place, for example, an audit trail of drivers and vehicles and introduces driver-training for “high-risk” drivers, for example, will escape prosecution under the forthcoming Corporate Manslaughter and Corporate Homicide Act, as they will be seen to be “managing” the risk.
| “The proposed new law will enable the courts to consider the overall picture of how an organisation’s activities are managed by its directors” |
Complacent companies that perhaps “doff their cap” at managing occupational road safety, without implementing the best practice pack of recommendations contained in the Health and Safety Executive guidance to managing work-related road safety, may find themselves safe under corporate manslaughter and corporate homicide laws, but they will not escape prosecution entirely. As we have seen recently, the police are far more likely to use health and safety legislation to mount a prosecution than criminal laws (see panels).
Due to the levels of proof required in a criminal court, fleets that find their at-work drivers involved in crashes and breaking the law – such as using hand-held mobile phones while driving – are likely to be prosecuted under the 1974 Health and Safety at Work Act. It is typically easier for the police to make a successful prosecution under health and safety legislation where a “management failure” can be identified and used in evidence against the organisation. How can you possibly defend an argument that the organisation was in breach of its health and safety obligations, when it is clearly incapable of managing itself?
Additionally, the Management of Health and Safety at Work Regulations 1999 require every employer to carry out an assessment of the risks to the health and safety of their employees while they are at work, and to other people who may be affected by their work activities. This includes any driving activity on the road. The Regulations require the risk assessment to be reviewed periodically to ensure that it remains valid. Employers should consider the risks to employees on the road in the same way as for those in a workplace.
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| “Putting in place a robust and comprehensive occupational road risk policy will save money“ |
The important aspect is that the organisation, in addition to the risk assessment itself, must be able to demonstrate to the authorities if challenged, an audit trail process whereby the risk assessment is actually being put into practice. This is something that is commonly missing from “off-the-shelf ” risk management products which can leave the organisation vulnerable to prosecution but lulled into a false sense of security.
We could also see disgruntled employees and third parties making personal injury claims or personal liability claims against a company or a senior director/manager for health and safety breaches. Also, any form of prosecution will send fleet insurance premiums rocketing. Therefore, putting in place a robust and comprehensive occupational road risk policy will save money.
The planned corporate manslaughter and corporate homicide legislation coupled with the police approach to prosecuting rogue companies using health and safety legislation clearly demonstrate that it is vital that employers can prove that they have:
- An appropriate policy in place
- They are implementing that policy by way of an audit trail.
This is the only way to deflect the unwelcome attention of the police.
Company fined £30,000 after employee dies out of work hours
A company was fined £30,000 for breaching health and safety legislation as a result of one of its workers dying in a car crash after working 76 hours in four days. The case, heard earlier this year, is thought to be the first of its kind in the UK because the company involved, The Produce Connection, admitted breaching health and safety legislation even though the employee died outside working hours.
Mark Fiebig had worked four 19-hour days – starting early in the morning and finishing late at night. He died when his car drifted into the path of an oncoming lorry as he drove home from work in October 2002. The court heard that Mr Fiebig was thought to be suffering from “chronic fatigue” and had fallen asleep at the wheel. Prosecutor Pascal Bates said Mr Fiebig had worked 11 days without a day off prior to his fatal crash.
During that time he had worked on average 17 hours a day and was getting three to four hours’ sleep a night. Mr Bates said other staff were working similarly long hours. He added: “Workers were paid by the hour. For payroll purposes a daily note was kept of each worker’s working hours. [The farm manager] had to be aware, and so did other management.”
Judge Gareth Hawksworth said the company had failed to properly monitor the hours its employees were working. The company admitted failing to ensure the health of workers and the public. Along with the £30,000 fine it was also ordered to pay £24,000 costs. Fleet industry solicitor David Faithful, a consultant to UK law firm Lyons Davidson and the Essential Risk Consultancy, said: “This case is an example of just how aware all companies should be of the work they ask their staff to undertake. Even though the crash occurred out of working hours the court held the employer liable because it believed that fatigue due to long working hours was the cause of the incident.”
Police to call on companies in further crackdowns on unsafe drivers
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Firms could be prosecuted for allowing employees to use hand-held mobile phones while driving in the latest crackdown on unsafe drivers In a pilot scheme launched in London, company bosses will receive a visit from officers from the Metropolitan Police’s Commercial Vehicle Education Unit (CVEU) when employees have been caught. They will then be quizzed about what they intend to do to curb the illegal use of hand-held mobile phones while driving.
Businesses that consistently refuse to bring employees into line will face prosecution and potentially unlimited fines under health and safety laws. Companies are responsible for giving the right advice to employees who use their own cars for work, as well as those who drive company cars. In December 2003, legislation was introduced banning the use of hand-held mobile phones while driving, with offenders facing a £30 fixed penalty notice or a fine on conviction of up to £1,000 or £2,500 for drivers of goods vehicles and vehicles adapted to carry eight or more passengers. Under the new Road Safety Act, the punishment will be increased, next year, to an endorsement of three penalty points and a £60 fixed penalty.
Metropolitan Police chief inspector Ian Brooks says: “Having a uniformed police constable around the office does not look good for business. The scheme is designed to make companies feel uncomfortable when not fulfilling their responsibilities but we will also be there to offer support and guidance in putting a policy in place. We are not out to target businesses, only to encourage companies to operate responsibly.” The pilot is part of Transport for London’s Freight Operators Recognition Scheme, which aims to cut the number of road offences committed by drivers in commercial vehicles.
| “Companies are responsible for giving the right advice to employees who use their own cars for work” |
While the use of hand-held mobile phones by commercial vehicle drivers in London is the first target area, the initiative could be extended to other motoring offences and to company cars. The measure could also be implemented by other police forces. Sussex Police’s COSTS (Commercial Operators Safer Transport Scheme) initiative is a similar scheme under which if a road traffic offender is driving or riding a vehicle owned by, or on behalf of, a commercial organisation, a standard letter is issued to the vehicle keeper to notify them of this. The offender is not identified, but the company is urged to ensure that its vehicles are used safely and offers advice on the management of occupational road risk.
Fleet industry solicitor David Faithful, a consultant to UK law firm Lyons Davidson and the Essential Risk Consultancy, says: “Failing to monitor staff behaviour with regard to using mobile phones while driving is a serious breach of a company’s duty of care, especially with the activity being illegal. If it is discovered that the company does not have a risk management strategy and refuses to cooperate, they will be issued with an improvement notice, in the event that the company still refuses to act they will be prosecuted.”
The number of motorists caught talking on a handheld mobile phone while driving has risen almost 75% in a year. Police force figures show that the number of fixed penalty notices issued to drivers caught using phones illegally increased from 80,000 in 2004 to more than 140,000 last year.
