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 – 26 th July 2007 Effective – 6 th 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 IOD guidance How to prepare for the Act

Health and Safety Management Systems Health & Safety Management Systems  HSG65 – Successful Health and Safety Management  BS OHSAS – Occupational Health and Safety Management Systems Specification  BS8800

HSG65  “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 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  Implemented  Allied to HR management  Reviewed BS OHSAS 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 control  Legal requirements  Objectives  Management Programmes  Risk Control Systems  Management Arrangements  Workplace precautions  Performance standards – KPMs BS OHSAS HSG65

Legal Requirements A formal process to identify:- –Legal requirements (new and changing) –Best practice –Benchmarking opportunities –Information Sources Legal Requirements

Planning Output  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 Responsibilities  Competence  Consultation and Communication  Documentation  Document and Data Control  Operational Control  Emergency Planning  Define responsibilities and relationships  Competence  Communication and Co-operation  Control  Management Arrangements  KPIs BS OHSAS 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 Checking And Corrective Action

BS OHSAS18001 HSG65  Performance Monitoring  Accidents, incidents and non-conformance monitoring and analysis  Records and record management  Audit  Active Monitoring  Reactive Monitoring  Accident Investigation and RCA  Audit ( separate section) BS OHSAS 18001HSG65

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 Management Review

BS OHSAS18001 HSG65  Review of every part of the system by top management  Reviewing Performance  Audit BS OHSAS 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 Continual Improvement

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 Review Any Questions? Thank you for your kind attention Kevin Burniston and Lisa McCaulder