Law in your own hands01 March 2008

You could be forgiven for thinking that on 6 April the eyes of the legal profession will be firmly on the Corporate Manslaughter (Corporate Homicide in Scotland) Act, as it comes into force. But you would be wrong. Why? Because for the vast majority of cases that have to do with health and safety, absolutely nothing changes.

That's the consensus among those involved. They argue that the Health and Safety at Work Act 1974, as well as PUWER (Provision and Use of Work Equipment Regulations), LOLER (Lifting Operations and Lifting Equipment Regulations) and the raft of related legislation, already provide a rigorous and balanced legislative framework - and with serious penalties for failure.

Focus on risk
As Phil Grace, casualty risk manager at Norwich Union, puts it: 'The reality is, the Corporate Manslaughter Act barely adds anything. The HSE's own impact assessment shows it has the potential for allowing no more than a dozen or so additional prosecutions per year.' More importantly, he warns: 'Last year, there were 241 workplace fatalities, but tens of thousands are seriously injured every year. I would not want people to think that management of risk is only about avoiding the fatalities.'

He's also concerned about the new bill's focus on what he describes as outcomes - what will happen to companies in the event of a death. 'What managements can't do is control outcomes. I would prefer them to focus on risk. Plant engineers and engineering managers need to examine what might go wrong before the event, then control the risk and prevent it from happening in the first place. If a fitter falls from a ladder, because that was the only way to maintain a particular piece of equipment, he may break an ankle, or he might break his neck. Making provision for safer access may well have reduced that risk,' explains Grace.

Nasar Farooq, technical manager of Croner Consulting's health and safety practice, puts it thus: 'If any company of any size is complying with the Health and Safety at Work Act and related regulations, they have nothing to worry about from the Corporate Manslaughter Act. Under the 1974 act, any employer already has to ensure the health, safety and welfare of all employees - so far as is reasonably practicable. ?Reasonably practicable' allows the employer to balance a quantum of risk against cost, time etc, to avert a risk. He also owes a duty of care to those who are not employees, but are affected by the company's activities - such as contractors, visitors to site, even trespassers. And the act places a duty on employees to co-operate with their employer - to report defects and to take reasonable care of themselves and others.'

All of that, he says, was given additional clarity with the advent of further legislation in 1992 - the so-called ?six pack', which included PUWER, the Workplace (Health, Safety and Welfare) Regulations, the Manual Handling Operations Regulations, the Personal Protective Equipment Regulations and the Supply of Machinery (Safety) Regulations.

'The most important part was the Management of Health and Safety at Work Regulations 1992, updated in 1999. This provided a lot more detail on how to comply with the 1974 act, focusing specifically on risk assessments, particularly for hazardous activities - including those involving plant and machinery - with the emphasis on training, method statements and safe systems of work.'

Document or die
For Norwich Union's Grace, 1992 was the turning point. 'That was when the legal requirement to carry out risk assessments came into clear being - it was only implied before. From that point on, engineers designing plant have had to do so in accordance with professional guidelines, using all relevant standards, without working outside their expertise - but specifically also thinking about safe use and safe maintenance. Likewise, plant engineers doing the installation and commissioning, and the maintenance itself. So, for example, if a temperature transmitter on a flue stack is going to need regular adjustment, engineers may need to be able to gain access via a permanent ladder.'

Formalising all that is about stated policies and documentation. Companies need policy statements, setting out their safety policies, as well as organisational statements, detailing who is responsible for training, statutory inspections and all other safety-related arrangements and procedures. They will also need to be able to show their risk assessments, method statements and safe systems of work, as well as proof of employees' and contractors' competence - meaning satisfying themselves that training, knowledge, experience and skills are up to the job, including through CPD (continuing professional development).

Thereafter, documentation has to be about task- based logging. As Farooq observes: 'There are no hard and fast rules, but it is a legal obligation on employers to prove compliance - and the only practical way you can prove that is through keeping a record of the work carried out. Management has to keep on top of that proactively and give plant engineers the opportunity to do it. A lot of plant engineering work is high risk and it's a fact that better planned and managed operations are safer.'

If you want to avoid accidents and prosecution, this is important. As Richard Blann, senior associate with Norton Rose LLP, explains: 'If your documentation isn't adequate, or parts of it are inconsistent, that puts you in a deeply uncomfortable situation. Any failure is going to lead to a lengthy and expensive investigation, and the costs that go with that. We see it time and again. There are police interviews; employers have to engage lawyers to sit with employees; the HSE will want to take away records, which can then be lost. You will also need to manage the press? Good documentation allows you to determine where the fault lies and, from the individuals' point of view, it also allows them to say: ?These are the systems I've been working to, and I was doing what was required.'

When things go wrong...
Nick Wilson, health and safety consultant with Weightmans Solicitors, explains the procedure. 'The HSE is bound by an enforcement guide, which lays down the various components of a thorough investigation, and it starts with establishing two key points. The first is an evidential test - what sort of evidence is available that proves the events and any shortcomings of the organisation. And the second is that a prosecution has to be in the public interest.'

He divides evidence into three categories. 'The first is physical evidence, such as samples, contaminants, photographs, or plant and equipment, all of which has to be collected in the appropriate way and may be removed. Second is documentary evidence - was there a safe system of work, evidence that training was supplied and understood? Are there records for statutory examinations of lifting apparatus and pressure systems, records of water dosing for Legionella, asbestos surveys and so on?

'Third is witness evidence - witnesses to the event, or who didn't see it, but can comment on procedures. So an engineering manager might be asked for a statement on how the company goes about compiling risk assessments. Also, if an investigator suspects that any individuals might have committed an offence, then he will ask for a statement under formal caution.'

And it doesn't stop there. 'The Health and Safety at Work Act requires individuals to take reasonable care. But is it reasonable that someone can exercise appropriate care simply by calling on their knowledge and experience? Or is it reasonable, as the HSE might argue, that you should have exercised further care by, for example, attending courses on risk assessments? Did you play your part in doing the risk assessment? If not, why?

'Most important, the big difficulty with health and safety law is that all the prosecution then has to do is say that an offence has been committed. The accused then has to prove that it was not reasonably practicable to have done more than he did. It's a reversal of the position in criminal law: the onus is on you to prove that you are not guilty.'

Which is why processes and documentation are crucial. 'In my experience of bringing prosecutions against companies, they fit into one of three categories. One, the company was discovered not to have done a risk assessment - so it's a straightforward breach. Two, they did have one, but it was neither suitable nor sufficient, and again, off we go. Or third, they had a risk assessment, it was suitable and sufficient, but they failed to properly disseminate and communicate it. In practice, it's unlikely that a company will have given a risk assessment no thought, and the chances are that it will have been suitable. But did the company communicate that? Where is the proof?'

Points
- Even the best performers should review their health and safety procedures
- There must be a rolling programme of audit and prioritised H&S actions
- Health and safety documentation has to be a living system, driven top down by management
- It helps to review your obligations - for example, around contractors and engineers seconded from third parties
- Systems might appear bureaucratic, but the benefits are massive, if you get into a work-related death investigation
- The onus will be on you to prove that you are not guilty

SOE

This material is protected by MA Business copyright
See Terms and Conditions.
One-off usage is permitted but bulk copying is not.
For multiple copies contact the sales team.