Corporate Manslaughter: Know the risks.

In February of this year, Cotswold geotechnical Holdings became the first company to be convicted under the Corporate Manslaughter and Corporate Homicide Act 2007. It was fined £385,000 after an employee was killed when a trench that he was working in collapsed in unnecessarily dangerous conditions.

Employers need to be aware that they have a general duty to ensure, as far as reasonably practicable, the health and safety of employees at work. They can be found liable for corporate manslaughter if its breach of care is particularly serious and causes an employees death. Although directors and managers can not themselves be liable for corporate manslaughter, they can be prosecuted separately for manslaughter or other offenses under health and safety legislation. Employers need to ensure that they minimise the risks of any liability by;

1. Ensuring the organisation complies with its general health and safety obligations, including any industry or sector specific duties.

2. Appointing a senior manager or director to oversee health and safety at the employers workplace

3. Considering where appropriate an independent audit of health and safety management systems and compliance

4. Providing training for staff on health and safety issues and safe working practices

5. Implementing processes to ensure that health and safety issues are reported up the management chain

6. Ensuring adequate records of compliance with health and safety are kept and properly monitored.

Employers should ensure that they do not overlook any circumstance where company cars are required to be driven. Employers need to ensure that they have systems in place that requires the safety of the vehicle if used for work purposes being checked as well as where appropriate, the fitness to drive of employees. Failure to for example have an adequate policy in place relating to driving under the influence of drink or drugs, may result in possible convictions.

The Department for Transport and the Health and Safety Executive do have guidelines and best practice for managing work-related road safety but employers must ensure that these guidelines are incorporated into an adequate policy and procedure.

Its not all about the pregnant lady

Employers are often surprised when men claim for sex discrimination as there is a fairly generalised view that only women can claim sex discrimination.

The recent case of, Evershed's legal services Ltd v Bellin has really highlighted that this is not always the case. The case itself also makes employers aware that just because somebody is on maternity leave they should not unfairly disadvantage male employees.

Mr Bellin was a solicitor who was placed at risk of redundancy alongside one of his female colleagues who at the time was on maternity leave.

A scoring system was put in place and a score was given for "lock-up" which is the time it takes for a solicitor to secure payment from clients for work done.

Due to Mr Belin’s female colleague being on maternity leave, she was given maximum points for lock up which meant that Mr Bellin was then only given a low score of 1.5.

This meant that Mr Bellin's score was 27 and his colleagues was 27.5. it was argued during the consultation exercise that alternatives could have been used such as;

1. giving both candidates a notional score of 1

2. averaging her performance over a 12 month period

3. scoring at the last convenient date before she started maternity leave i.e. the end of December 2007.

Had the firm adopted the last suggestion then the two scores would have been the same.

The Employment Appeal Tribunal found that although there are circumstances where those on maternity leave are given special treatment in comparison to their male and female colleagues, that special treatment should not go beyond what is reasonably necessary to compensate them for the disadvantage occasioned by their condition.

Employers must ensure that although an employee who is made redundant while on maternity leave does have the right to any suitable alternative vacancies ahead of any other employees, when deciding who to make redundant, automatically favouring a female employee on maternity leave does not always mean that it would not unfairly disadvantage male employees allowing them to successfully bring a claim for sex discrimination.

Equally this is something that may well affect more men in the future particularly with enhanced Paternity rights.