Corporate manslaughter and voluntary directors duties impact on local government Future of safety en

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Corporate manslaughter and voluntary directors
duties impact on local governmentFuture of
safety enforcement 24th November 2008

• Steve Sumner OBE
• National health and safety policy adviser

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Agenda

• Issues for local government
• LGE message to Local government
• What local government should do in response
• What LGE has been doing
• Penetration of the guidance

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Local Government Employers (LGE)

• Created April 2006 out of EO
• Part of LGA group
• Slimmed down and focused
• Around 50 employees
• Based LG House, Smith Square, Westminster
• Pay, Pensions and Employment solutions (includes
  HS)
• www.lge.gov.uk

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Local government in context Types of local
authority

• Different types of council
• Range from a few 100s to many 1000s
• A round 2.2 million employees
• Equivalent to1.5 million FTEs
• Millions service users
• Owe a relevant duty of care to millions!

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LAs services and service delivery

• Regulatory
• Childrens services
• Adult services
• Arts and recreation
• Highways
• Refuse collection and disposal
• Etc etc etc etc
• Many delivered in partnership or on contract
• Private, public or third sector

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Impact of the Act when could LAs be liable

• Death of an employee
• Diverse risk environment
• Many and varied risks
• Up trees, down in sewers
• Death of a service user/client/in our care
• Client in a residential care home
• Out door adventure activity

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Impact of the Act when could LAs be liable

• Death of a member of the public
• Run over by a refuse vehicle
• Drowning in a council run swimming pool
• Death to several members of the public
• Outbreak of legionnaires disease

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Fatal accidents in Local Government

• Owe a relevant duty of care to many millions
• Very few fatalities
• One is too many
• Each one is a tragedy
• LAs are not complacent
• LAs take their duty of care very seriously
• Strive to be exemplars (Revitalising health and
  safety)
• Reputation as good employers
• War for talent/employer of choice

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Impact of the Act what will they mean for LAs?

• Prosecution for CMs more likely to succeed?
• LAs who comply with common law and statutory
  duties have little to fear
• Main objective must be to comply with HS duties
• Sensible risk management v exposure to
  prosecution
• Hopefully most LAs are broadly in compliance
• May not be liable even if not fully compliant
• Still vulnerable to health and safety prosecution
• Aimed at those who fail miserably
• Those who are found wanting.

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Impact of the Act some issues for LAs to consider

• Role of elected members
• Are elected members within the definition of
  senior manager?
• They are not excluded
• Could elected members be seen as senior managers?
• Probably, yes
• What role do your elected members have in
  management?
• We will see!

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Impact of the Act some issues for LAs to consider

• What about services delivered by contractors on
  behalf of the LA?
• Could LAs be held accountable for the failings of
  contractors?
• What about services offered in partnership?

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Impact of the Act some issues for LAs to consider

• Deaths resulting from public policy decisions
• Allocation of finance/competing public interests
• Exempt from new offence
• ..something the organisation failed to do after
  the money is allocated brings liability
• Interpretation of public policy decisions?
• What scenarios could be within scope?
• Do not rely on this to exemption

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Is it conviction that should scare organisations?

• Should the worst happen and someone is killed
• Be afraid of conviction but that could be years
  away
• A charge may also be years away
• The investigation will start almost immediately
• Police will visit
• They will interview employees manages, and
  members
• In depth investigation, avoid judicial review
• Be prepared
• Remember organisational culture and attitudes
• Accident waiting to happen they have been
  doing it that way for years

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Impact of the Act some reservations

• Punishment by significant fine (unlimited)
• Recycling public money
• Council taxpayers
• Threat to service provision
• Impact upon the organisation
• Political fallout and reputation risk

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Impact of the Act some reservations

• Publicity orders
• Possibly of value for LAs
• Reduce fine
• Significant local and national media interest in
  LAs
• Opportunity to demonstrate contrition and regret
• Demonstrate that things have been improved
• May be of more value for multi-nationals
• Remedial orders
• Rarely used or needed?
• Delay between death and conviction
• Would look very bad if the same deficiencies
  existed
• Impact on fine

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What should LAs do? Leadership comes from the top

• HSC/IoD guidance on leading health and safety at
  work, Oct 2007
• www.hse.gov.uk/leadership/index.htm
• Applies to the public sector
• Commended to local authorities
• Directors and portfolio holders should
• Plan
• Deliver
• Monitor
• Review
• Leadership check list
• Is your executive management team
• following the guidance?

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Line managers are responsible for managing the
health and safety of their people in the same way
they manage attendance, performance, discipline
on a day to day basis. (Even in larger
organisations where competent health and safety
advice is available) Health and safety management
still remains with the line managers it is not
the responsibility of the health and safety
adviser, they provide competent advice.If you
are called a manager then you are likely to be
interviewed.
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HSG 65 Successful health and safety management
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Elements of a health and safety management system
from HSG 65
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Role of elected members in health and safety

• Councils sets strategy, direction and budgets
• The Leader provide visible and committed
  leadership
• Elected member to receive appropriate health and
  safety training
• Joyce Edmond-Smith letter to Council Leaders 2003
• Reproduced in the Barrow report and again
  commended to council leaders

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Role of Cabinet members

• Demonstrate leadership in their departments
• Need to understand the strategic risks that exist
• Set strategy, policy and targets for risk
  management
• Inform cabinet and council of health and safety
  issues in their departments
• Monitor health and safety performance
• Ensure adequate resources for delivery of health
  and safety
• Receive appropriate training
• Consider health and safety implications in
  decisions

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Role of portfolio holder for health and safety

• Overview of strategic risk and their control for
  the whole organisation
• Lead on safety for the council
• Ensure HS function is adequately resourced
• Develop a council wide strategy, policy and
  targets for risk management
• Inform cabinet and council of significant HS
  issues (inc audit reports)
• Ensure appropriate training is given to members
  and staff
• Support the HS function

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Impact of the Act What should LAs do?

• Act as a catalyst
• Carry out reality check
• Review strategic management of HS (HSG 65 or
  equivalent system)
• Consider externally accredited management systems
  e.g. OHSAS 18001
• Health and safety responsibilities in job
  descriptions
• Managers must understand their HS
  responsibilities
• Managers must play their part in HS management

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Impact of the Act What should LAs do?

• Plan strategically for HS improvement
• Nominate a Director and an elected member to be
  responsible for HS
• Leaders lead on HS
• Develop positive (organisational) HS culture
• Test the culture

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Impact of the Act What should LAs do?

• Work with contractors and partners
• Build HS into the procurement process
• Monitor HS performance (in house and
  contractors)
• Report on performance at the highest level
• Embed health and safety into management and
  decision making processes
• Health and safety implications of cabinet
  decisions

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Impact of the Act What should LAs do?

• Have a fatal accident plan
• What do if the worst happens
• Business continuity issue
• Specialist legal advise
• Liaison with police
• Cope with missing staff
• Guidance to local authorities
• www.lge.gov.uk/lge/core/page.do?pageId119849

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Impact of the Act Some reassurance!

• New offence not new duties
• Should not be expensive
• Should be doing this already
• Do not over react
• Principles of sensible risk management
• Do not stop doing things
• Ensure adequate resources for HS regulatory
  function
• Some LAs are health and safety regulators!

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What has LGE been doing?

• Website Ten things to know about corporate
  manslaughter
• Warwick/LGE workshops on health and safety
  governance issues
• England, Scotland and Northern Ireland
• Ten regional briefings on corporate manslaughter
• Five legionella seminars including corporate
  manslaughter
• Articles in local Government press
• gt2000 Leading..distributed in hard copy
• Leadingdistributed through electronic networks
• Leadingpromoted on website and revisited after
  one year
• Spoken at six conferences

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Impact of leading..on local government

• HSE funded research into penetration of Leading.
  Guidance
• Published early next year
• 36 of LAs contacted (n 45) had heard of the
  guidance
• 31 had read the guidance
• Message appears to be getting through

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In Conclusion

• No new duties, a new offence
• Significant for LAs as a duty of care owed to so
  many
• Focus on complying with health and safety
  obligations
• Elected members have a role
• Carry out a reality check, is the health and
  safety management system working
• Catalyst for improved performance
• Comply with health and safety requirements but do
  not over react!
• Some penetration of guidance needs to be
  increased

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More information on corporate manslaughter

• www.justice.gov.uk/publications/corporatemanslaugh
  ter2007.htm
• www.cps.gov.uk/legal/section5/chapter_b.html
• www.hse.gov.uk/corpmanslaughter/
• www.lge.gov.uk
• www.personneltoday.com/articles/2008/03/15/41798/c
  orporate-manslaughter-legal-q.html
• www.corporateaccountability.org/
• Google search corporate manslaughter UK pages
  only
• Only 86,400 matches so good luck!

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• Corporate manslaughter and voluntary directors
  duties impact on local governmentFuture of
  safety enforcement 24th November 2008

• Thank you for your kind attention