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March 27, 2014

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Managing safely: corporate manslaughter is changing enforcement


Martin Barnard, director of health and safety, Capita 

We are long used to organisations being investigated by the Health and Safety Executive, and other enforcers, for potential breaches of health and safety law.  Rightly or wrongly, individuals within the organisation often saw the offence as being committed by the somewhat faceless, legal entity, called ‘the company’.

The approach taken by the enforcers is now changing, and, seemingly, rapidly so.  There is an obvious focus on the actions, or inactions, of individuals within an organisation.  It is what I refer to as “looking behind the corporate veil”.  When it happens, few individuals deal with the investigation easily.  Indeed, the majority are ill-prepared and have a distinct un-ease as to how to respond to what is seen as an un-welcome and unfair inquisition.

Whilst there may be several reasons for this phenomenon, I believe the most likely, and significant, factor is the arrival of the Corporate Manslaughter Act in April 2008.  By the very nature of a manslaughter investigation, the roles of senior personnel in the organisation come under close scrutiny.  They are often found wanting in how they represent their personal actions, sometimes in a way which merely serves to further arouse the enforcer’s interest in digging further.

A bit like a run-away juggernaut, the momentum of an investigation can be hugely difficult to stop.  Cutting it short is best achieved early on, by demonstrating a positive and tangible approach to health and safety.  Culture, leadership and behaviour are seen as buzz words, only to be used in the academic environment of the training room.  In my experience, these principles, properly demonstrated, are like gold dust in the quest to assist the investigation whilst, at the same time, protecting the position of the individual.

Senior people in business often ask me how best to deal with such an investigation.  My answer is usually one word — confidence i.e. coming across in a positive way which shows that the principle of culture, leadership and behaviour are fundamental parts of the corporate vocabulary and personal actions.  Sadly some remain dismissive of such an approach, relying instead on increasingly risky strategies such as “It will never happen to me” or “Not my responsibility”.

As with most incidents of serious consequence, education (some still call it training) is the most important weapon in the armoury.  That is all the more so where the issues are likely to be complex, with the investigation taking a slice through the management chain i.e. potentially from director to junior manager.

All this leads to a key ingredient in the practical implementation of effective health and safety, which is “competence”.  Organisations are now rightly posing themselves questions such as “How do we put people to work?”, and “How competent are our front-line supervisors?” It is at this point that a significant, and potentially dangerous, disjoint exists in the knowledge, expectations and aspirations of managers and supervisors.  The consequence of that disjoint is the appearance of poor strategy, lack of leadership and inadequate management — all of which results in increased focus on directors and managers within the business.

What is the way forward? In my view, there is a need to demonstrate joined up thinking which embraces all the elements I have described above.  To that end, there needs to be complementary corporate and individual agendas which can be fulfilled by:

i) Organisations taking advantage of the recent revision of HSG65 ‘Successful Health and Safety Management’.  The change from POPMAR to Plan/Do/Check/Act is a good one, with huge scope for existing procedures and systems to be reviewed and up-dated as a springboard for the future;

ii) Individuals becoming educated in what their responsibilities actually are, and how best to demonstrate them in a tangible and meaningful way.

Having been involved in the first three cases for corporate manslaughter completed in Great Britain, it is clear to me that the individuals involved in those cases were ill-prepared for what emerged in the lengthy investigations and court cases which followed.  In keeping with scout/guide tradition, the best advice I can offer is “Be prepared — be educated”.  In that way you can put in the performance of a lifetime should the spotlight ever fall on you!


Martin will be appearing at the four day IOSH Managing Safety course in London on 19 May. For details contact [email protected]


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