DEMONSTRATING AN EFFECTIVE HEALTH AND SAFETY MANAGEMENT SYSTEM

To avoid prosecution under the Corporate Manslaughter and Corporate Homicide Act 2007, a demonstrable and effective health and safety management system should be in place.
When considering whether or not a gross breach has taken place, the Act requires juries to consider, among other matters, the attitudes, policies, systems or accepted practices likely to have encouraged the failure.
The health and safety management system should be based on effective risk assessment and be subject to robust systems of internal control and review.
The health and safety roles and responsibilities of senior managers need to be clearly outlined, and their performance should be measured and evaluated to ensure they have the necessary competencies to carry out their roles and responsibilities effectively.
The attitude of those at director level plays an important part in developing the organisation's culture and its tolerance of breaches of safety legislation.
The effective management of health and safety will depend on a suitable and sufficient risk assessment being carried out and the findings being effectively used.
The organisation needs to establish an effective health and safety management system to implement their health and safety policy. It needs to be proportionate to the hazards and risks they need to combat.
Managers need to ensure that all employees, at all levels, are motivated and empowered to work safely.
A systematic review of performance, based on the information obtained from monitoring and auditing, is required if an organisation is to learn from all relevant experience.

Only when directors and senior executives give a positive commitment to any changes that need to be implemented will those occupying other managerial levels follow suit.

In order to ensure that an organisation's health and safety management system operates efficiently and in a way that provides a defence under the requirements of the Corporate Manslaughter and Corporate Homicide Act 2007 (the Act), it is essential that evidence can be obtained, when required, that demonstrates that effective management systems are in place and that those occupying senior management positions are both competent and fully committed to ensuring the effectiveness of the health and safety management system.

Employers' Duties

Corporate Manslaughter and Corporate Homicide Act 2007

The new Corporate Manslaughter and Corporate Homicide Act 2007 places senior managers and organisations at risk of prosecution if their gross management failings lead to the death of an employee or a member of the public to whom a duty of care is owed.

The legislation states that there has to be a relevant duty of care owed by the organisation in the law of negligence to the deceased and a gross breach of that relevant duty of care leading to that person's death.

In order to ensure that the organisation's health and safety management system operates efficiently and in a way that provides a defence under the requirements of the Act, it is essential that evidence can be obtained, when required, that demonstrates that effective management systems are in place and that those occupying senior management positions are both competent and fully committed to ensuring the effectiveness of the health and safety management system.

Management of Health and Safety at Work Regulations 1999

The Management of Health and Safety at Work Regulations 1999 provide the legal framework for a health and safety management system.

Health and Safety at Work, etc Act 1974

The Health and Safety at Work, etc Act 1974 requires employers to ensure “so far as is reasonably practicable” the health, safety and welfare of their employees and other persons who may be affected by their work. This includes sub-contractors and the general public.

Employees' Duties

Employees must inform their employer, or other employees with a responsibility for health and safety, of any work situation where there is a serious and immediate risk to health and safety. Similarly, they must inform employers of any shortcomings in the employer's protection arrangements.

In Practice

The emphasis in the Corporate Manslaughter and Corporate Homicide Act 2007 is on effective management of health and safety and therefore it is vital that senior management can demonstrate that they have an effective system in place.

Gross Breach of Care

To be guilty of an offence under the Act, an organisation's activities must be managed or organised in such a way as to amount to a gross breach of a relevant duty of care owed by the organisation to the deceased.

A “gross” breach involves conduct that falls far below what can reasonably be expected of the organisation in the circumstances. Furthermore, the way in which the organisation's activities are managed or organised by its senior management must form a substantial element in the breach. “Senior management” is defined as the persons who play significant roles in the making of decisions about how the whole, or a substantial part, of an organisation's activities are to be managed or organised, or the actual managing or organising of the whole, or a substantial part, of those activities.

When considering whether or not a gross breach has taken place, the Act requires juries to consider, among other matters:

failure to comply with any relevant health and safety legislation and, where this occurs, the seriousness of the failure and the risk of death it posed
attitudes, policies, systems or accepted practices likely to have encouraged the failure to comply with the relevant health and safety legislation, or led to a tolerance of this failure
any relevant health and safety guidance
any other matters they consider relevant.

Relevant Duty of Care

A “relevant duty of care” is taken to mean any of the following duties owed by an organisation under the law of negligence.

The duty owed to an employee or to other persons working for the organisation or performing services for it.
The duty owed as an occupier of premises.
The duty owed in connection with the supply of goods or services, the carrying on of construction or maintenance operations, the carrying out of other activities on a commercial basis or the keeping of any plant, vehicle or other thing.

Therefore, in order to defend itself against such a charge, it is necessary for senior managers to ensure that they have evidence to demonstrate a transparent and effective health and safety management system is in place and that its policies and procedures are translated into positive action on a day-by-day basis.

In line with the requirements of the Turnbull Report it is essential that this health and safety management system is based on effective risk assessment and is subject to robust systems of internal control and review. It is also essential for senior managers to ensure that the health and safety management system covers the full range of duty of care situations outlined and, as a minimum, ensures compliance with all relevant health and safety legislation and guidance.

The Role, Responsibilities and Competency of Senior Managers

Combined Negligence

It is important to remember that a “gross” breach under the Act need not purely relate to the failures of one individual, rather the negligence of several individuals may add up to gross negligence, particularly where the individuals occupy senior management positions.

Therefore, it is essential that the health and safety roles and responsibilities of senior managers are clearly outlined, that their performance is measured and evaluated and that they have the necessary competencies to carry out their roles and responsibilities effectively.

Directors' Responsibilities

Those operating at director level in organisations (titles may differ depending on whether the organisation is in the private or public sector and on its legal status) have a critical part to play in ensuring that health and safety is effectively managed. For example, they are responsible for ensuring robust internal monitoring, that reviews take place and that effective risk assessments are undertaken.

Additionally, the attitude of those at director level plays an important part in developing the organisation's culture and its tolerance of breaches of safety legislation and organisational rules and procedures.

Impact of Health and Safety Director Role

Some organisations may choose to appoint a specific director to carry the health and safety responsibilities. This has the advantage of providing a focal point for health and safety within the organisation and allows that person to provide authority and credence to health and safety initiatives. However, it may also lead to others at director level feeling that they have no health and safety responsibilities. In reality, health and safety factors need to be taken into account when all business decisions are made and they cannot be considered in isolation. For example, when deciding on the purchase of equipment, the health and safety issues related to the various items of equipment under consideration need to be taken into account along with factors relating to purchase costs, maintenance requirements, training needs and installation costs, etc.

In fact, health and safety impacts on the decisions made by directors with a diverse range of responsibilities and not merely on the director allocated health and safety responsibilities.

No Directing Mind, No Excuse

In order for any health and safety management system to be effective, it is essential that those at senior management level take the lead and provide visible and active support, strong leadership and commitment. Where this is lacking, line managers will perceive that health and safety is a “cosmetic” rather than a genuine concern for the organisation and a sloppy culture, which tolerates rule breaking, will quickly be generated. This was highlighted by the Herald of Free Enterprise disaster where it was found that all those concerned in management, from the members of the board of directors down to the junior superintendents, were guilty of fault. From the top to the bottom, the body corporate was infected with the “disease of sloppiness”.

In the past, the need to identify a particular individual at the directing mind level, whose negligence directly caused death, meant that this combined negligence was not enough to successfully prosecute an organisation for manslaughter. However, under the new Act, the total of the various examples of individual negligence may, taken together, count as gross negligence. This is particularly true where senior managers are involved.

It is hoped that the Act will make it easier to successfully prosecute in cases such as the Herald of Free Enterprise. Therefore, it is essential that those at senior management level set positive examples and ensure that those beneath them in the management chain do likewise.

HSE Guidance

The HSE guidance INDG343 Leading Health and Safety at Work advises that:

directors formally and publicly accept a role in providing health and safety leadership
directors accept their individual roles in relation to health and safety
all board decisions reflect the board's health and safety intentions (as stated in policy)
directors accept a role in engaging active participation of their staff in improving health and safety
directors ensure that they are kept informed of, and alert to, relevant health and safety issues.

The HSE also recommends the appointment of a health and safety director. The Health and Safety Management System As juries will need to consider the extent of health and safety legislative breaches when deciding if gross negligence led to the death, it appears that no new or additional standards have been introduced by the Act. Senior managers need to ensure, and to be able to demonstrate to enforcement authorities and the courts, that the health and safety management system in operation meets the requirements of current health and safety standards and legislation. Organisations with a positive attitude towards health and safety will, of course, be doing this already. However, they will still need to ensure that they have evidence available to demonstrate that this is the case. In organisations lacking such a positive attitude a lot more work will be required.

Health and Safety Legislation

There is a plethora of specific health and safety legislation relating to, eg the control of hazards ------- such as chemicals, noise, vibration, work at heights, electricity and equipment, etc ------- which must be adhered to. However, the main requirements of the Management of Health and Safety at Work Regulations 1999 apply to health and safety management systems. These include the following.

Assessments of the risks to employees and others (Regulation 3).
Principles of prevention (Regulation 4).
Health and safety arrangements (Regulation 5).
Health and safety assistance (Regulation 7).
Procedures for serious and imminent danger (Regulations 8 and 9).
Information for employees (Regulation 10).
Co-operation and co-ordination between employers (Regulation 11 and 12).
Capabilities and training of employees (Regulation 13).

Employers are required to make and give effect to such arrangements as are appropriate ------- having regard to the nature of their activities and the size of the undertaking ------- for the effective planning, organisation, control, monitoring and review of the preventive and protective measures. Where the organisation employs five or more employees, these arrangements must be recorded. This regulation provides the legal framework for a health and safety management system. According to the accompanying (ACOP), the effective management of health and safety will depend on a suitable and sufficient being carried out and the findings being effectively used.

Planning

The organisation needs to establish an effective health and safety management system to implement their health and safety policy and which is proportionate to the hazards and risks they need to combat. This will involve:

adopting a systematic approach to risk assessment with deadlines for completion
using risk assessment methods to set priorities and objectives for hazard elimination and risk reduction
selecting appropriate methods of risk control
setting deadlines for the design and implementation of the preventive and protective measures
developing performance standards for the completion of risk assessments and the implementation of the preventive and protective measures.

Organisation

Consultation and Communication

The organisation needs to involve employees and, where appropriate, their representatives in the carrying out of risk assessments and in the selection and implementation of the preventive and protective measures. It also needs to establish effective means of communication and consultation that makes clear the commitment to health and safety. This communication will ensure that employees receive sufficient information to implement effectively the control measures that have been introduced. Provision of Information and Training The provision and evaluation of information, instruction and training should also ensure the competence of employees, particularly those involved in risk assessment and the selection and implementation of the preventive and protective measures. Where necessary this competence will need to be supported by the provision of health and safety assistance or advice.

Control

clarify health and safety responsibilities and ensure those with such responsibilities clearly understand what they need to do and have the time and resources needed to discharge them
co-ordinate the activities of various individuals
set standards to judge the performance of those with health and safety responsibilities
ensure adequate supervision is provided.

Monitoring

Organisations need to monitor:

how well their health and safety policy is being implemented
how well identified risks are being controlled
how successfully a positive safety culture is being developed. This will include both proactive and reactive monitoring, eg:
planning and carrying out routine inspections to check the effectiveness of the preventive and protective measures
investigating the immediate, underlying and root causes of incidents and accidents to ensure that remedial action is taken
recording and analysing the findings of proactive and active monitoring in order to identify themes or trends.

Review

Organisations should carry out reviews in the following circumstances.

In order to establish priorities for any remedial action identified as a result of proactive or reactive monitoring.
In order to periodically check the effectiveness of the entire health and safety management system.
A Model for a Health and Safety Management System
The Health and Safety Executive's (HSE's) HSG65 Successful Health and Safety Management suggests that the following key elements need to be incorporated into an effective health and safety management system. Policy Setting a clear direction for the organisation to follow in terms of health and safety. Organising
Ensuring that all employees, at all levels, are motivated and empowered to work safely. This relies on effective involvement and participation and is sustained by effective communication and the promotion of competence.
A positive health and safety culture needs to be fostered through the visible and active leadership of senior managers. Planning and Implementing
Risk assessment methods should be used to decide priorities and to set objectives for eliminating hazards and reducing risks. Performance standards need to be established and used for measuring achievement. Measuring Performance
Performance needs to be measured against agreed standards through the use of proactive and reactive monitoring techniques.
The monitoring needs to consider hardware, in terms of premises, plant and substances, and software, in terms of people, procedures and systems. Additionally, the monitoring needs to consider individual behaviour and performance, including that of senior managers in respect of health and safety.
The objectives of the monitoring are to determine the immediate causes of sub-standard performance, and to identify the underlying causes and their implications for the design and operation of the health and safety management system. Auditing and Reviewing Performance
A systematic review of performance, based on the information obtained from monitoring and auditing, is required if an organisation is to learn from all relevant experience. This not only ensures that the organisation adopts a philosophy of continuous improvement but also forms the basis of self-regulation implied in the Health and Safety at Work, etc Act 1974.
The results of the review can be incorporated into any annual reports that are required to be produced. This is also in line with the requirements of the Turnbull Report. Securing Commitment at Board and Senior Executive Level
In order for an organisation to effectively manage health and safety in a way that will offer a defence against a possible prosecution under the Corporate Manslaughter and Corporate Homicide Act 2007, it is essential that those at the top give a positive commitment to any changes that need to be implemented. Only then will those occupying other managerial levels follow suit.
In order to secure such a commitment from those at board or senior executive level, the following approach could be adopted. The preparation and delivery of a presentation, at board or senior executive level, outlining the implications of the Act and providing detailed recommendations concerning the action that needs to be taken to defend the organisation. Preparation of a brief for a board or senior executives meeting that, in order to focus their attention and interest, outlines the likely outcomes of a failure to defend a prosecution under the Act, such as the following.
Fines may be in the order of 2.5% to 10% of annual turnover if the recommendations of the Sentencing Advisory Panel are followed. Where the organisation pleads not guilty, the starting point may be 5% for a first offence. Turnover is calculated from the average of three years. The panel suggest that the fine imposed needs to be set at a level significantly higher than for an offence involving a death, under the Health and Safety at Work, etc Act 1974, because the new offence involves more serious instances of management failure. The sentencing guidelines will lead to far more significant fines as the largest current fine under health and safety legislation is the £15 million awarded against Transco (in 2005, for safety breaches that led to the deaths of four members of a family), which represented less than 1% of the organisation's annual turnover. The guidelines were originally due to be issued in Autumn 2008 but were postponed; as of September 2009, they are yet to be published.
Brand image could be seriously damaged if the courts impose a publicity order on every organisation convicted as has been suggested. This might require publicity on television, in local and national newspapers, in the trade press and in notices to shareholders or letters to customers. This is a new type of sentence set out in the Corporate Manslaughter and Corporate Homicide Act 2007. Preparation of a report for consumption at board or senior executive level that reviews the effectiveness of the existing health and safety management system. This should consider the following.
Whether the policy is up to date and translated effectively into action.
Whether health and safety roles and responsibilities are clearly identified at all levels and whether those allocated with these roles and responsibilities understand them and have the competencies to discharge them effectively.
All relevant health and safety legislation, guidance and standards and how well they are being complied with.
The status of risk assessments ------- have they been completed and are the reviews up to date?
The disciplinary records relating to rule-breaking, etc.
Whether key performance indicators are established and are being met.
Whether training needs analysis has been undertaken, training provided and training records kept.
The effectiveness of the proactive and reactive monitoring regimes with regard to inspections, safety sampling, accident and incident investigations, etc.
Whether all identified remedial work has been actioned and follow-up monitoring instigated.
The effectiveness of the auditing and review process.
Whether current insurance arrangements are sufficient to cover possible defence costs.

Preparation of costed and prioritised recommendations for action that needs to be taken, for consideration at a board or senior executives meeting. These recommendations are based on a gap analysis that compares what evidence will be required to successfully defend a prosecution under the Act with the evidence that can be provided by the present health and safety management system. In this way, cost-effective decisions can be taken based on analysis of both the costs and benefits involved.

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