The reference has two sources. Firstly, it is the duty of care a bus and coach operator has as a corporate entity - be that a Limited Company, a partnership or some other private body - under the terms of the Health and Safety at Work Act 1974. Secondly, it relates to what the law sees as the line of command for duty of care.
Gauntlet is asking bus and coach operators to focus on not justhealth and safety law, but also criminal law. Both could catch an operator out, if duty of care is seriously or grossly breached.
2016 brought new Health and Safety Sentencing Guidelines into place, complete with business-breaking fines, based on company turnover, even for the likelihood of an incident and not just where actual severe injury or death has occurred. Severe financial penalties – and potentially imprisonment – are real possibilities.
The Corporate Manslaughter and Corporate Homicide Act 2007 came into place in April 2008, but it is only in recent times that the CPS has shown more willingness to charge individual/s as well as businesses, for breaches of the law. Individual directors can breach duty of care simply by holding the office of ‘director’.
The 2007 law punishes those paying “scant regard” to health and safety, with fatal results. Gross negligence can result in life imprisonment, cost a fortune to defend and involve lengthy proceedings.
What is a fair cop?
‘Grossness’, in terms of negligence, relates to an organisation’s failings. Whether corporate manslaughter charges are brought depends on whether senior management’s failings contributed to the gross negligence.
The failing does not have to solely or mainly cause a death. Directors could be found guilty for:
- failure by omission – not acting on a known safety issue
- failure to provide training in safe working
- failure to counter predictable risks
- non-provision of safety equipment
- failure to protect agency workers, contractors, site visitors and general public
Who is in the ‘line of duty’?
The line of duty may not be linear. Previously, the law looked for a ‘controlling mind’ within an organisation, typically deeming the person at the top culpable for breaches. Now, many directors/officers are potentially in the firing line, including:
- senior managers significantly influencing decision-making
- a regional manager at a site where negligence occurs
- a cost-cutting finance director
The line of duty depends on factors such as size, management structure, activities handled and more, but it could start and end with you! Fines between £180,000 and £20 million and time spent at Her Majesty’s pleasure could result.
For whom could I be the ‘duty officer’?
- other workpeople e.g. agency workers, delivery agents, contractors, temps
- others in the same premises/affected by them
- those your business affects, those exposed to vehicles/plant/equipment/drivers and your activities or those using vehicles and other equipment
Guilt occurs if you, “fall far below what can reasonably be expected of the organisation in the circumstances.”
Undercover investigations could catch you out
Incidents can promote probes into past activities. What systems and practices were the catalyst? How apparent was the threat? Were there near misses or cost-cutting? Were H&S warnings ignored?
If a disregard for the law, lax approaches, or deliberate decision-making to not bolster safety are discovered, the company AND individuals could be ‘in the dock’. Additionally, previous identified failings could be aggregated.
Better surveillance, corroboration, evidence
Gauntlet Group always urges commercial transport operators to engage in better ‘surveillance’, starting with thorough health and safety audits and risk management assessments. Gauntlet’s fleet risk surveys comprise the holistic and informed approach required.
Documenting and ‘corroborating’ H&S actions taken, keeping evidence on file of actions, reporting and training, and building a bank of positive evidence is key and should help your broker lower insurance premiums for you, by presenting you as a better risk.
Footing the bill
Ultimately, you also need a safety net. Your business should have two core insurance covers:
- Employers liability insurance
- Public liability insurance
But if the line of duty stops with you, seriously consider Directors & Officers (D&O) insurance too, to protect personal assets and your liberty, by providing financial assistance for your defence – typically phenomenally expensive.
Gauntlet’s managing director, Roger Gaunt, says: “Thinking about health and safety as both the line of duty within your organisation and a legal line not to be breached, can clarify the situation within most passenger transport businesses. Enforcement has strengthened and those with businesses and civil liberties to protect need to do so, considering their own personal insurance covers, whilst also protecting the business entity. Entity insurance can actually be added to D&O cover, providing robust protection for both the business and its individual managers and directors.
“Do not take this lightly. Crossing the thin blue line, by not exercising duty of care, can have devastating impacts, ruin lives and result in deaths. Don’t bail out when it comes to proactive health and safety management.”
For help with this, call Gauntlet on 0113 244 8686.