Reputation, reputation, reputation

Preventing accidents (fatal or otherwise) is the best form of defence. Take note of the action points from our alert 'Corporate manslaughter – time to get cracking' to ensure your organisation is in good shape before the Corporate Manslaughter and Corporate Homicide Act 2007 comes into force on 6 April 2008.

We have added some further action points for organisations to consider in light of the proposals made by the Sentencing Advisory Panel:

• Act upon advice, cautions or warnings received from regulatory authorities. If you have been warned by regulatory authorities about failings in safety standards (for example as a result of previous incidents) and took no action before the death(s) occurred, this is likely to increase the level of punishment.
• Give proper consideration to concerns raised by employees or contractors which concern health and safety. Discussion regarding what has been raised and the reasons for a decision not to take any action should be clearly minuted. Where action is to be taken but can't be implemented immediately, ensure that interim protection proportionate to the risk, is also considered and monitored. For example, a concern about a particular tripping hazard may lead to a decision to carry out adaptations to remove the hazard. Until that can be done, an interim measure might be to increase flagging of the hazard and minimise traffic around it. Where there is an immediate and serious risk of serious injury or death from a hazard, interim measures are likely to require isolation of the area of risk pending action to rectify it.
• Carry out operations with an appropriate licence. Organisations working with hazardous substances such as asbestos or explosives, or in a hazardous industry such as construction are generally required to hold a relevant licence. Operating without or in breach of a required licence will usually constitute a separate offence, but will also increase culpability in relation to an offence of corporate manslaughter and/or an offence under the Health and Safety at Work Act etc (HSWA) 1974 involving death.
• Lack of action prompted by cost saving motives may also be a seriously aggravating feature likely to increase the level of punishment. There are no hard and fast rules here and it is not generally considered unreasonable to budget and plan for health and safety improvements. However, again, do consider interim protection where change is to be delayed. The higher the risk, the harder it is to justify delay in reducing that risk.
• Although legal advice should be sought first, ready co-operation with the authorities and taking steps to remedy safety failures as soon as possible after an accident has occurred may mitigate the punishment. Such steps are likely to be looked upon more favourably by the court if taken voluntarily rather than as a result of pressure from enforcement authorities. The reason for taking legal advice on your position here is that consideration also needs to be given to balancing the risk that taking steps after the event are not interpreted as steps which ought to have been identified and taken before the event. Not everything can be foreseen and avoided. Accidents by their very definition are unanticipated events. It is right to learn from them but also important not to open yourself up to criticism when in fact they couldn't reasonably have been prevented.
• Aim to maintain a good safety record. An excellent record might be considered as a relevant mitigating factor for some offences under the HSWA involving death.