Management of Health and Safety Legal Perspective. Mark Tyler CMS Cameron McKenna. Today’s Topics. Compensation Culture Legislation as driver HSE’s enforcement role Directors’ responsibilities H&S in Corporate Governance Corporate Manslaughter. Compensation Culture.
CMS Cameron McKenna
Legislation as driver
HSE’s enforcement role
H&S in Corporate Governance
“The growing compensation culture in the UK is now costing about £10bn a year – or 1% of GDP”
Institute of Actuaries, Dec 2002
“25% of employees find the essential Employers Liability Compulsory Insurance difficult or impossible to secure despite vigorous attempts to find cover.’
Federation of Small Business, May 2004
Growing compensation culture poses major threat to profitability and jobs.
Aon, July 2004
Regulate claims Co’s More rehabilitation Raise small claims limit Investigate contingency feesImprove ombudsmen arrangements Promote occupational healthMore mediation Lower insurance premiums
“The Government is concerned both that there should not be scope for avoidance measures by unscrupulous companies or directors, and that enforcement action should act as a real deterrent, even in large companies and within groups of companies.”
Among the specific proposals which the Health and Safety Commission will consider are:
"The evidence supports the view that it is inspection, backed by enforcement, that is most effective in motivating duty holders to comply with their responsibilities under health and safety law. We therefore recommend that the HSE should not proceed with the proposal to shift resources from inspection and enforcement to fund an increase in education, information and advice".
House of Commons Work and Pensions Committee, July 2004
2003 survey of directors
“Rewards are not at the top of directors’ agendas. The area directors are most concerned about is the risk from health and safety and product liability laws.”
"The board needs to ensure that it is kept informed of, and alert to, relevant health and safety risk management issues. The Health and Safety Commission recommends that boards appoint one of their number to be the 'health and safety director'".
Percentage of organisations that have allocated health and safety responsibility to a board level director [Source: HSE Research Report 135]
Great Western Trains Acquitted
OLL Ltd Convicted
Law Commission Proposals
Corporate Manslaughter Developments
Only 6 Corporate prosecutions have succeeded
“A, on the...day of...1996, unlawfully killed B”
“…where a corporation through the controlling mind of its agents, does an act which fulfils the pre-requisites of the crime of manslaughter…it, as well as its controlling mind or minds, is properly indictable for the crime of manslaughter”
“...The jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore as a crime. This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred. The jury will have to consider whether the extent to which the defendant’s conduct departed from the proper standard of care incumbent upon him... such that it be judged criminal.”
Introduction of a specific “Corporate Killing” offence for ‘undertaking’ with three key elements
1.A ‘management failure’.
2.It is ‘the cause or a cause of death
3.The failure constitutes ‘conduct falling far below what can reasonably be expected...’
“There is a management failure if the way in which activities are managed or organised fails to ensure the health and safety of persons employed or affected by those activities”