Putting safety first

Rail crashes have fuelled calls for a crime of corporate manslaughter and for improved safety at work.

Michael Gerrard explains the crucial role played by solicitors in this growing field

Recent rail disasters have pushed to the forefront health and safety issues, prompting harsher enforcement of existing laws and the prospect of new ones, all promoting growth areas for legal work.

Health and safety was once an odd category divided between several legal disciplines - employment, personal injury, environment and construction.

But as government and the public have taken more of an interest in the subject, it has developed as a practice area in its own right.

In essence, it centres on the duty of care an employer or business owes to its employees and any third parties visiting it, be it client, contractor or guest.

Hilary Ross, a partner in City firm Berwin Leighton Paisner's regulatory group, has noticed a change in emphasis from the authorities, not least after rail disasters such as Potters Bar in which seven people died in May.

'The message from the enforcement powers is that health and safety has to become the number one priority, and not be treated as a bit of an add-on as was so often the case in the past.'

She adds that a company's directors now have to give it consideration when making all their decisions.

This is a change in emphasis from the prevailing attitudes not so long ago.Steven Francis, a partner at City firm DLA, remembers: 'Health and safety breaches were not thought of as crimes and as one judgment recorded, "any element of stigma had been diluted to a vanishing point".'

He adds that in many high-risk industries such as rail or construction, accidents were considered inevitable, with any fines imposed for breaching health and safety legislation generally on the low side and treated as a kind of tax.

The Court of Appeal's verdict in R v Howe and Son, The Times, 27 November, 1998, heralded an era of fines big enough to put offenders into liquidation.

Upholding a fine and costs almost double the firm's annual profit following the electrocution of an employee, the court commented: 'There may be cases where the offences are so serious that the defendant ought not to be in business.'

In the years following, not only have fines jumped, but the government and enforcement bodies, principally the Health and Safety Executive (HSE) have toughened up codes and attempted to bring in a fresh raft of legislation, including a new offence of corporate manslaughter/killing.

In both the enforcement policy statement issued in January this year by the Health and Safety Commission (HSC, the HSE's parent body), as well as the guidance notes it released in the summer, a stall has been set out clearly spelling out the circumstances where transgressing firms can expect to be prosecuted.

It also details how company directors should themselves take responsibility for ensuring that correct health and safety measures have been implemented.

Of these new developments, Mark Tyler, a partner at City firm CMS Cameron Mckenna, says: 'These set in place more of a structured and transparent approach to enforcement, honing in on the responsibility of individual senior managers and looking closely at the management chain.'

The HSE, which along with individual local authorities, polices this area, denies that these latest documents mark a new direction for them.

A spokesman says: 'There has not been a change in emphasis, it's just these statements spell out in considerably more detail than before what the HSC expects of the enforcing authorities.'

These statements may indeed be merely reinforcing existing guidelines, but what cannot be doubted is that both lay a heavy emphasis on the duties and responsibilities of a company's board of directors, which ties in with a long-anticipated piece of legislation.

Corporate manslaughter/killing has always presented the thorniest dilemma - how to show the direct culpability of the leadership of an organisation for the actions of their subordinates.

It is true that existing legislation does provide for the possibility of a company's leadership facing criminal sanctions in the event of death, but the lengthy chain of causation in large firms mean that only a handful of prosecutions of big organisations have succeeded.

As Mr Francis says: 'In companies of any size, boards delegate and the directors don't get blood on their hands.

Only very small companies are affected.'

Given the government's already stated aim of making company directors more accountable for their organisation's health and safety issues, the introduction of corporate manslaughter provisions should be seen as a natural progression.

The issue was the subject of a consultation paper two years ago, but was subsequently placed on the back burner after replies criticised the paper for not suggesting much that was new.

But commentators maintain the issue may be about to resurface in the forthcoming Queen's Speech, either as legislation in its own right or as an addendum to the so-called Safety Bill, which has appeared in the speech for the past two years, without subsequently receiving parliamentary time.

This proposed bill included provisions to make it easier to punish transgressors with custodial sentences, so would tie in with it.

In September, Home Secretary David Blunkett issued a letter to companies working in high-risk industries, asking them to produce a regulatory review of their health and safety practices, seen by many observers as the obvious prequel to another stab at introducing legislation.

Though the issue of corporate manslaughter together with tighter guidelines are the talking points in this area, other issues - not least new regulations for both asbestos and the construction industry - also attract comment.

Changes to the Asbestos at Work Regulations 1987, which are due to receive government approval imminently, will demand that owners of buildings are made responsible for managing any asbestos deposits on their premises.

Lyn McPherson, a solicitor at City firm Nabarro Nathanson, says: 'Those deemed in control of the building will have to carry out risk assessments of asbestos in the building, locate and possibly remove it.' She adds that those working in the building will have to be kept informed as to the asbestos situation.

This is going to become an extremely hot topic in several industries, most obviously construction, which is under further inspection at the moment thanks to a consultation paper discussing how the industry can better implement controls.

All these consultation papers, guidelines and proposed pieces of legislation mean that the health and safety practitioner has got his work cut out at the moment.

Many working in the field argue their duties go beyond merely keeping their clients abreast of the law.

Rather, they are increasingly straying into the management consultant's area and advising on how best rules can be implemented in the workplace in a practical way.

This involves the solicitor advising on which systems should be put in place, to comply with policy, and to ensure as far as possible that all the health and safety bases are covered - a vital service given that a company under investigation needs to show that it did, according to the Health and Safety at Work Act 1974, 'all that is reasonably practicable' to avoid liability.

Leading on from this, solicitors also advise on how to handle an incident and liaise with the authorities in case of a breach.

Mr Francis says: 'The real issue is governance, management and employment factors, not just advising on safety regulation issues on the ground, such as how many fire extinguishers your client is required to house on their premises.

These specifics can be handled by non-lawyers.'

Mr Francis and other practitioners maintain that the health and safety area of practice, which barely existed a decade ago, is one that can only get stronger.

Michael Gerrard is a freelance writer