Bosses Have No Place To Hide
Phil Crosbie on individuals in corporate manslaughter prosecutions
LAST month, in the second part of this series, I discussed the upsurge of people in corporate manslaughter prosecutions. So why there is a focus on individuals?
In addition to the reasons outlined last month, it could be argued that the trend of seeing more individuals brought into prosecutions is a symptom of the way in which the statutory offence of corporate manslaughter is structured.
Unlike the ‘old’ law where it was necessary to find a ‘controlling mind’ at the top of the organisation, the ‘new’ offence is focussed on cumulative and collective failings of senior management in the way that they manage and organise a business.
This requires a change in tack by investigators, who can cast their net wider when looking for failings and, arguably, lead to more individuals becoming suspects themselves. A corporate manslaughter investigation is a large-scale piece of work, akin to a murder investigation, and typically involves a forensic review of senior management, considering emails, meeting minutes and other detailed evidence.
It could be that this style of investigation is uncovering more individual failings than the ‘old’ law or when compared to the requirements of a health & safety investigation, where the focus is on establishing the existence ‘risk’.
Where next for individual prosecutions?: A glimpse of the future may be found in the ongoing prosecuting of Sterecycle (Rotherham) Limited. In addition to the corporate manslaughter charge, as confirmed by Jane Wragg, specialist prosecutor in the CPS Special Crime & Counter Terrorism Division:
‘I have also authorised charges under Section 7 of the Health & Safety at Work Act against Kevin Goss (maintenance manager), Steven Weaver (operations manager) and Paul Greenwell (operations director) and a further charge of perverting the course of justice against Kevin Goss.’
This is a worrying evolution for senior individuals. The requirement under Section 7 HSWA is based on the duty to take reasonable care for an individual’s own safety, as well as that of others around them.
The threshold for conviction is arguably low; it would be relatively easy to show a failure to take reasonable care. It is certainly lower than the ‘gross negligence’ needed for gross negligence manslaughter, or the consent, connivance or neglect that must be proved in order to obtain a Section 37 HSWA conviction.
Whilst previously directed towards the ‘underlings’ of an organisation, Section 7 could be the gateway to individual senior manager culpability to accompany corporate manslaughter prosecutions.
Avoiding the issue: The key goal for any organisation should be ensuring the safety of its workers and those who might be affected by its activities. Senior leaders play a key role in managing those risks. The HSE recently revised its guidance Leading Health & Safety at Work, created jointly with the Institute of Directors. All senior leaders should be aware of the guidance issued, the key parts of which revolve around the ‘plan, do, check, act’ method of good safety management.
Senior leaders should take an active interest in health & safety performance to satisfy themselves that risks have been reduced as far as possible. Examples of mistakes by senior management teams include:
A focus on accident statistics as a key measure of health & safety performance: This ‘backwards looking’ approach distracts senior leaders from identifying proactive safety initiatives and may give a misplaced sense of confidence;
Senior leaders assuming that health & safety can be fully delegated to one person on the senior team: There may be a ‘health & safety champion’, but every senior leader has a level of responsibility;
Failing to follow safety procedures when on site walkarounds and visits: The attitude from workers is that ‘if my boss does not follow the rules, why should I?’;
Instructing third party consultants and not properly acting on their advice, or failing to properly test and challenge the conclusions and recommendations arrived at; and
A template discussion of health & safety at the start of every senior meeting as standard practice without considering whether it should be first on the agenda, and why.
Phil Crosbie is a senior associate at Eversheds, a large corporate law firms
This article has been reproduced from the Contract Flooring Journal. You can find them at www.contractflooringjournal.co.uk.