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Directors Should Check Health and Safety Compliance- 24/02/2011
Directors should check their company’s compliance with Health and Safety regulations, following the first successful prosecution of a company for corporate manslaughter, warns a Wolverhampton business and regulatory crime legal specialist.
David Campbell, an associate in the Wolverhampton Litigation Department of Midlands law firm FBC Manby Bowdler LLP, says that the fine of £385,000 handed down to Cotswold Geotechnical for failing to prevent the death of an employee working in an unsupported trial pit, should be a wake up call to all companies to ensure they get Health and Safety right.
The Corporate Manslaughter and Corporate Homicide Act 2007 can result in an unlimited fine, a Remedial Order requiring it to take steps to address the failures that led to the death and a Publicity Order requiring it to publicise details of its conviction and sentence.
“The fine imposed on Cotswold Geotechnical was designed to be punitive and although it can pay over 10 years could result in it going out of business with the loss of four jobs,” says Mr Campbell.
“To determine the level of fine imposed the Court will have taken into account factors such as: how foreseeable was serious injury and how far short of the applicable standard did the company fall, how common is this kind of breach in the company and how far up the company chain does the breach go?
“Failure to heed warnings or advice, cost cutting, deliberate failure to obtain or comply with relevant licences and injury to vulnerable persons will have aggravated the offence. Conversely, a prompt acceptance of responsibility, a high level of co-operation with investigators, genuine efforts to remedy the defect, a good Health & Safety record and a responsible attitude to Health & Safety are likely to have been regarded as mitigating factors.
“The fine imposed on Cotswold Geotechnical took account of its small size. Larger companies found guilty of a similar offence could expect to pay much more,” warns Mr Campbell.
The Corporate Manslaughter and Corporate Homicide Act 2007 can also result in individual prosecutions of any company directors who consented, connived or were neglectful with regard to an offence being committed by the company. In the case of Cotswold Geotechnical its single director was deemed too ill to stand trial.
Mr Campbell says: "The fact that Cotswold Geotechnical Holdings is run by a sole director made it a relatively easy case to try, but nonetheless he did not face the court. The real test will come when a significantly larger company with a complex management structure is prosecuted.
"The Corporate Manslaughter Act enables prosecutors to go after senior managers. Therefore we will not see what the act can really do until a company with a significant management chain is brought to trial, but this conviction should be a warning to directors to act now.”
David Campbell advises clients facing investigation by regulatory bodies such as Councils, Fire Authorities, the Health and Safety Executive, the Environment Agency and others. He can be contacted on tel. 01902 578041 or by email d.campbell@fbcmb.co.uk or via www.fbcmb.co.uk
With 35 partners, FBC Manby Bowdler is one of the largest law firms in the West Midlands. The firm has offices in Wolverhampton, Willenhall, Telford, Shrewsbury and Bridgnorth