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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.

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Management of Health and Safety Legal Perspective


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Presentation Transcript
today s topics
Today’s Topics

Compensation Culture

Legislation as driver

HSE’s enforcement role

Directors’ responsibilities

H&S in Corporate Governance

Corporate Manslaughter

compensation culture
Compensation Culture

“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

compensation culture5
Compensation Culture
  • The culture is a myth
  • The perception causes fear of litigation and imposes burdens on organisations
  • Redress for genuine claimant is hampered

www.brtf.gov.uk

Recommendations

Regulate claims Co’s More rehabilitation Raise small claims limit Investigate contingency feesImprove ombudsmen arrangements Promote occupational healthMore mediation Lower insurance premiums

compensation culture6
Compensation Culture
  • Conditional fee rules introduced, 1995
  • Legal aid restricted for personal injury, 2000
  • Solicitors’ advertising rules relaxed, 2001
  • Increasingly strict interpretation of regulations and common law duties of care.
legislation as a driver
Legislation as a Driver
  • HSWA
  • 100+ health and safety regulations
  • Management of Health and Safety at Work Regulations 1999

Corporate Manslaughter

“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.”

legislation as a driver11

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Safety Case holders

Legislation as a Driver
  • Southall rail crash
  • Ladbroke Grove rail crash
  • Hatfield
  • Transco/Larkhall
legislation as a driver12
Legislation as a Driver

Among the specific proposals which the Health and Safety Commission will consider are:

  • Fines linked to the turnover or profit of a company;
  • Prohibition of Director bonuses for a fixed period;
  • Suspension of managers without pay;
  • Suspended sentences pending remedial action
  • Compulsory health and safety training
  • Fixed penalty notices for specific offences
  • Deferred prohibition notices on welfare issues
hse enforcement role
HSE Enforcement Role

"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

slide16
Enforcing authorities should identify and prosecute or recommend prosecution of individuals if they consider that a prosecution is warranted. In particular, they should consider the management chain and the role played by individual directors and managers, and should take action against them where the inspection or investigation reveals that the offence was committed with their consent or connivance or to have been attributable to neglect on their part.
slide18

H&S in Corporate Governance

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.”

slide19

Action Point 5

"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]

h s in corporate governance
H&S in Corporate Governance
  • Combined Code – internal control guidance
  • HSC/DETR’s ‘Revitalising Health and Safety’ strategy
  • HSC’s ‘Health and Safety in Annual Reports’ guidance
  • DTI’s draft OFR and Directors Reports Regulations
top uk companies h s information in annual reports
Top UK Companies’ H&S Information in Annual Reports

49%1995 (FTSE100)

47%2001 (FTSE350)

80%2003 (FTSE350)

h s in corporate governance22
H&S in Corporate Governance
  • Combined Code – internal control guidance
  • HSC/DETR’s ‘Revitalising Health and Safety’ strategy
  • HSC’s ‘Health and Safety in Annual Reports’ guidance
  • DTI’s draft OFR and Directors Reports Regulations
slide23

Proposals in October?

Great Western Trains Acquitted

OLL Ltd Convicted

P&O Acquitted

Case dismissed

Law Commission Proposals

Reform Proposals

Corporate Manslaughter Developments

1990

91

92

93

94

95

96

97

98

99

2000

01

02

03

04

experience with prosecutions in england
Experience with prosecutions in England
  • ‘Work-Related Deaths’ Protocol
  • 253 cases referred to CPS since 1992
  • 69 prosecutions
  • 18 convictions

 Only 6 Corporate prosecutions have succeeded

manslaughter indictment
Manslaughter Indictment

“A, on the...day of...1996, unlawfully killed B”

corporate manslaughter doctrine of identification
Corporate Manslaughter – doctrine of identification

“…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”

current law of gross negligence manslaughter
Current law of gross negligence 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.”

unsuccessful attempts to prosecute
Unsuccessful attempts to prosecute
  • Zeebrugge
  • Southall rail crash
  • Ladbroke Grove rail crash
  • Simon Jones
  • Hatfield (Railtrack)
the need for reform
The need for reform
  • Accountability
  • The doctrine of ‘identification’ is discredited
  • The common law of manslaughter is unsatisfactory
home office proposals may 2000
Home Office Proposals, May 2000

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”

final thoughts
Final Thoughts
  • Revitalising targets not being met
  • Problems with an enforcement approach
  • Prosecutorial selection of cases
  • No sentencing tariffs
  • Little evidence for deterrent effect of the current models
  • Economically inefficient
  • No alignment with business objectives
  • Conflicts with other policy objectives
  • Separate the enforcement and advisory functions?