Operators urged to be aware of the law

Individuals, not just businesses, can be in the firing line if an organisation is found to be negligent – Directors can face anything from huge fines to life imprisonment if convicted

Gauntlet is warning coach and bus operators, to be aware of the line of duty.

The reference is two-fold. Firstly, it is the duty of care they have 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 operators to focus on both health and safety law and criminal law. Both could catch them out, if duty of care is seriously or grossly breached.

2016 brought new health and safety sentencing guidelines complete with business-breaking fines, based on company turnover, even for the likelihood of an incident and not just when a 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 force in April 2008, but the CPS has only recently shown more willingness to charge individuals as well as businesses. 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.

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 responsible?

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 officers are potentially in the firing line, including:

• Directors
• 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 £20m and time spent at Her Majesty’s pleasure could result.

For whom could I be the duty officer?

• Employees
• Other workpeople e.g. agency workers, delivery agents, contractors, temps
• Others in the same premises/affected by them
• Customers
• 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

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 health and safety 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

Gauntlet is urging 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 health and safety 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 and Officers insurance too, to protect personal assets and your liberty, by providing financial assistance for your defence – typically phenomenally expensive.

Best defence

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 be added to Directors and Officers 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.”