Fatality at work…
So, a fatality is the ‘worst case scenario’ for your company, but do you understand what will happen if the ‘unthinkable’ happens…?
The first few days…
So, you’ve an Employer and have had a serious accident at your workplace, resulting in one or more fatalities; so what happens now? Well, once the initial activity fades away (and assuming you haven’t been arrested on the spot), initial enquiries are dealt with by the Police. Whenever there is a suspicion that a negligent homicide may have caused the death, the police will assume primacy for the investigation and work in partnership with other relevant enforcing authorities. The relevant Health and Safety authorities (depending on your industry) will work alongside the Police until such time as it is decided if there is a case for gross negligence manslaughter (GNM) or corporate manslaughter (CM), against either an individual or the company.
If, or when, it becomes apparent to the Police and Crown Prosecution Service that it is unlikely that there will be sufficient evidence to prove such an offence, primacy will be assumed by the relevant enforcing authority as expediently as possible, this may be day, weeks or months.
During this period, you’re going to be dealing with grieving family members, the attention of the Media,your existing clients/customers considering if they wish to deal with you any longer and a multitude of organisation problems relating to the actual incident. This may well include orders being cancelled, and other staff being off sick from the trauma of the event. Some may never return once they think ‘That could have been me…’
The HSE take over…
The Health and Safety Executive (HSE) or other relevant enforcing regulator, will review the Police files, in which they have so far been in a supporting role, and then get further into their own detailed investigation. They have a long list of powers, which effectively concludes with ‘…any other power which is necessary to perform their duties’.
You have to give them access to just about any building, document/records, equipment or person that they wish access to. This included giving them an office to work from while they are on-site. The HSE investigation will be extremely thorough and their powers are actually far greater than those of the Police in some areas. They may well find something during their investigations that was not accessible to the Police, due to the different rights of access.
An HSE fatality investigation, from Incident to trial date is typically 2 to 4 years, although one recent case, of a tyre fitter killed in 2006 did not reach the Courts until 2016, a whole 10 years.
While all this is going on, the employer needs to be closely examining their entire H&S management. Although very much a case of ‘closing the stable door after the horse has bolted’ you cannot continue in the same old way. Continuing with the same attitudes and procedures is going to going to give the same results.
A word of caution here, any documents produced by you or for you are liable to be used in evidence. If engaging an external company or consultant to conduct a review, they should be under the instructions of your Solicitor, and reporting to the Solicitor, thus providing some small degree of legal privilege to the report. Acting responsibly after the event can be seen by the Courts as mitigation towards a reduced sentence, showing that you have learnt something, albeit somewhat late in the day.
The Court Hearing…
When there is a fatality in the workplace, there are only a few cases where some form of prosecution does not take place. Although the premise of UK law is ‘innocent until proven guilty’, the fact that death has occurred is quite convincing in that regard, and it becomes a case of the defendant, whether individual or company, having to prove that they did everything reasonably practicable to prevent the incident occurring.
There is nothing to prevent the incident resulting in cases against both individual directors and the company. After a worker was killed at a small Road Sweeper company in 2012, the 2014 Court case was against BOTH the company and the Director.
- Mobile Sweepers (Reading) Limited pled guilty to a charge under the Corporate Manslaughter and Corporate Homicide Act (CMCHA) 2007 and was fined £8,000 and ordered to pay a further £4,000 in costs at Winchester Crown Court. The fine was the lowest to be imposed under CMCHA but reflected the fact that the company ceased trading soon after the incident and had total assets of only £12,000. The judge also imposed a ‘Publicity order’ for the conviction, which was the first time this provision under the CMCHA had been used. It requires an agreed account of the company’s conviction and guilt to be publicised in the press.
- The Director pled guilty to a charge under Section 2 of the Health and Safety at Work etc Act 1974 and was fined £183,000 with £8,000 costs. He was also disqualified from being a company director for five years after the Judge learned he had set up a new replacement Road Sweeper business.
The initial Court hearing will be at the Magistrates Court to enter a Plea, in the case of a fatality, it will always be passed up to the Crown Court. An early guilty plea usually results in a 1/3 reduction in sentence; this along with the far lower costs of not fighting the case in court is often an attractive option for defendants.
Sentencing, since February 2016, follows new guidelines from the Sentencing Council. The new guidelines look to the:
- The Culpability – Did the employer give a damn about the health & safety, was it an uncharacteristic error or a complete disregard.
The Harm – Health and safety offences are concerned with failures to manage risks to health and safety and do not require proof that the offence caused any actual harm.The offence is in creating a risk of harm.
- The organisation’s Turnover – Not their annual profit, their turnover.
This guidance to the Courts applies to sentencing of both Individuals and companies, regarding serious injury and fatality. Early indications are of a massive increase in custodial sentences for individuals, generally suspended sentences, but some 20% are immediate imprisonment.
What if you’d had a proper Health & Safety Management System in place?
What if…. That question will be foremost in your mind for a very long time.
Do not rush around immediately after the event trying to cover up the gaps in your health & safety; you hadn’t recognised them before, so it’s very unlikely you’ll be any better at it now. Seek professional help.
Health & Safety is only ‘Common Sense’ and ‘Simple’ if you know what you are doing. If you have any doubts about your systems, or would like an external review, seek professional advice from a competent source. As an employer, be it as company owner or director, you can delegate the work but you cannot delegate the responsibility.
Updated 10 Dec 2016