April 2006

Managing Health & Safety

Kevin Burniston

Lisa McCaulder

Legislation

The Corporate Manslaughter and

Corporate Homicide Act 2007

Legislation

The legal requirement

How to prepare for the Act

Objectives:-

Legislation

Rooted in Law Commission proposals in 1996

Royal assent – 26th July 2007

Effective – 6th April 2008

Current Position

Legislation

To make it easier to convict organisations for work-related deaths caused by negligence by removing onerous requirement to prove the PERSONAL and INDIVIDUAL guilt of manslaughter of one of the ‘controlling minds’ at the highest management level

Objective

Legislation

The Act will NOT impose any:

New obligations

New safety measures

New management processes

N.B.

Legislation

To alter the ‘corporate risk’ profile by re-classifying conduct that is already an offence under OHS legislation as ‘corporate manslaughter’ (‘corporate homicide’ in Scotland)

The Acts main effect will be:-

Legislation

The ‘old’ common law offence of manslaughter is confined to individuals and corporate bodies.

Corporate manslaughter offence extends to:

Partnerships

Trade unions

Employers bodies

Police forces

Government bodies

Legislation

Corporate manslaughter committed if

the way in which an organisation’s

activities are managed or organised:-

causes a person’s death and

amounts to a gross breach of relevant duty of care

Core Provision

Legislation

Conduct amounts to a breach of duty that falls far below what can reasonably be expected of the organisation in the circumstances

Gross breach

Legislation

Prosecution must show that the way in which an organisation’s activities are managed or organised by its ‘senior

management’ was a substantial element in the breach of the duty of

care

Legislation

People who play significant roles in making decisions about how the organisation’s activities are managed

How senior? = grey area

‘Senior management’:-

Legislation

1)To employees or others working for the organisation

2)As the occupier of premises

3)When undertaking various activities e.g. supply of goods or services

4)To persons held in custody or otherwise detained

Duty of care owed by organisation:-

Legislation

1)Due primarily to negligence of a co-worker

2)Occurring for reasons which cannot be laid at the door of managers with confined line management responsibilities

Act not applicable to deaths

Legislation

Act does not require proof of any individual being guilty of an offence – AS REQUIRED BY ‘OLD’ LAW

Legislation

1)The organisation failed to comply with relevant legislation

2)The serious nature of that failure

3)How much of a risk of death was posed as a result

4)That attitudes, policies, systems or accepted practices were likely to have encouraged such failure or tolerance of it

Jury considers evidence which shows:-

Legislation

1)Management knew of the risks

2)Management sought financial gain for the organisation from the failure to comply with OHS legislation

Jury considers extent to which:-

Legislation

UNLIMITED FINE

+

PUBLICITY ORDER – publication of the offence and penalties

Penalties

Legislation

New Act has no impact on individual liability

As before can still be guilty of common law manslaughter for gross negligence in conduct of their management role

Individual liability

Legislation

Identify activities with potential for serious accidents

Review relevant risk assessments and safe systems of work

Identify items arising which have not been actioned e.g. from recent audits

Present to ‘board’ on new Act

How to prepare for the Act

Legislation

Ensure competence of managers and supervisors i.e. training, experience and attitude

Seek measurable improvements in safety culture among senior managers

See HSE’s sample questionnaire at www.hse.gov.uk/ IOD guidance

How to prepare for the Act

Health and Safety Management SystemsHealth & Safety Management Systems

HSG65 – Successful Health and Safety

Management

BS OHSAS 18001 – Occupational Health and

Safety Management Systems Specification

BS8800

HSG65HSG65

“Successful Health and Safety Management”

The only management system “approved” by HSE

Policy

Organisation

Planning and Implementation

Measuring Performance

Reviewing Performance

Auditing

Policy Development

Organisational Development

Developing techniques of planning, measuring and reviewing

Feedback loop to improve performance

HSG65

BS OHSAS 18001 BS OHSAS 18001:2007

Accepted internationally across industries as a demonstration of good management practice

Equivalent to ISO9001:2000 and ISO14001:1996 in structure and format

Continual Improvement

OH&S Policy

Planning

Implementation and operation

Management review

Checking and corrective action

BS OHSAS 18001

Legal Requirements

OH&S Policy

BS OHSAS18001 HSG65

Appropriate Include continual

improvement Include

commitment to

comply with law Implemented Communicated Reviewed

Allied to business

risks Include TQM

(PDCA) Systematic approach ImplementedAllied to HR

management Reviewed

BS OHSAS 18001

HSG65

Implementation and Operation

Output

A comprehensive, understandable OH&S Policy that is communicated throughout the organisation

OH&S Policy

Legal Requirements

Planning

BS OHSAS18001 HSG65

Hazard ID and Risk

assessment and

controlLegal requirementsObjectives Management

Programmes

Risk Control

SystemsManagement

ArrangementsWorkplace

precautionsPerformance

standards –

KPMs

BS OHSAS 18001

HSG65

Legal Requirements

A formal process to identify:-

– Legal requirements (new and changing)

– Best practice

– Benchmarking opportunities

– Information Sources

Legal Requirements

PlanningOutput

Risk Management Strategy

Risk Control Systems

Risk Profile

Database of applicable law and guidance

OH&S objectives for each part of the business

Documented Management Programmes

Planning

Legal Requirements

Implementation and

Operation

BS OHSAS18001 HSG65

Structure and

ResponsibilitiesCompetenceConsultation and

CommunicationDocumentationDocument and Data

ControlOperational ControlEmergency Planning

Define

responsibilities and

relationshipsCompetenceCommunication and

Co-operationControlManagement

ArrangementsKPIs

BS OHSAS 18001

HSG65

Implementation and Operation

Output

Description of roles and responsibilities

CMS

Safety communications

A written management system

Document Control Procedure

Workplace controls

An emergency plan

Implementation and Operation

Legal Requirements

CheckingAnd

Corrective Action

BS OHSAS18001 HSG65Performance

MonitoringAccidents,

incidents and

non-conformance

monitoring and

analysisRecords and record

managementAudit

Active Monitoring

Reactive

Monitoring

Accident

Investigation and

RCA

Audit (separate

section)

BS OHSAS 18001 HSG65

Checking and Corrective Action

Output

Inspection schedules and checklists

Records of inspections etc

Maintenance plans

Accident and incident reports

Accident investigation reports

Audit reports

Checking and Corrective Action

Legal Requirements

ManagementReview

BS OHSAS18001 HSG65

Review of

every part of the

system by top

management

Reviewing

Performance

Audit

BS OHSAS 18001

HSG65

Management Review Policy review

Updating objectives

Adequacy of risk management procedure

Accident reporting and recording

Proactive monitoring review

Audit

Changing environment

Management Review

Legal Requirements

ContinualImprovement

Continual Improvement

Should happen naturally Located in the feedback loops Information is gathered from every

part of the system That information is used to improve

every part of the system As something is improved it is checked

and reviewed – and so information is generated for the next improvement

Continual Improvement

Management ReviewAny Questions?

Thank you for your kind attention

Kevin Burniston and Lisa McCaulder