Although the Corporate Manslaughter and Corporate Homicide Act does not put a duty on employers to prepare contingency plans, an appropriate, robust plan could be the difference in deciding whether to prosecute under the new law.
The King's Cross underground station fire, the capsizing of the Herald of Free Enterprise at Zeebrugge and the fire on the Piper Alpha North Sea platform are all examples of where better emergency response could have to some extent mitigated the death toll. While the initiating events, and the responsibility for them, were probably of greater significance, the whole purpose of contingency planning is to recognise that sometimes things go wrong and that there should be procedures in place to minimise the chance of fatalities.
At King's Cross, the probable cause of the fire was a discarded cigarette falling onto detritus that had accumulated under an escalator. As a consequence, smoking on the underground was banned. However, the official report on the incident also found many deficiencies in the emergency procedures. A fire was a foreseeable occurrence, and adequate plans should have been developed to evacuate passengers safely.
Under legislation current at the time, a "controlling mind" had to be identified for a charge of manslaughter to be brought, but the complexities of a large organisation meant that this was impossible. Under the new Corporate Manslaughter and Corporate Homicide Act (the Act), this would not be necessary and the organisation rather than an individual could be prosecuted.
The Cullen report concluded that the immediate cause of the fire on the Piper Alpha platform was a leakage of flammable gas, as a result of major failures in the design and operation of safety systems. The report drew attention to basic failures to show all newcomers the location of their lifeboats, and that evacuation drills and exercises were not carried out with the required frequency or in the required way.
In the case of the Herald of Free Enterprise, the cause of the disaster was that the ship sailed with the bow doors open. The reasons behind that would apparently have been sufficient for a charge of corporate manslaughter, had the new act been in place at the time. The scale of the disaster was undoubtedly a result of the speed at which the vessel capsized, as soon as the sea flooded onto the car deck, as a consequence of the design. This flaw had never been properly considered. Even the best evacuation plans would have been severely tested in these circumstances.
These examples illustrate how emergency procedures have been found wanting during incidents. The emergencies have all arisen as a result of shortcomings in the management of the companies' normal activities. It is perhaps not coincidental that there have also been deficiencies in the emergency procedures.
Developing your plan
Firstly, no matter what regulations have been contravened
leading to an incident, if a company's emergency procedures are good enough to
prevent an incident becoming a fatality, the company cannot be prosecuted under
the act. Secondly, if a fatality does occur, all the company's procedures are
going to be put under the microscope, and any positives might just swing the
balance when it is decided whether to prosecute under the new act or
alternatively under some less serious regulation.
In small organisations, the emergency plan can be simple and prepared internally using common sense, observations of what is done elsewhere and readily available advice from various organisations, perhaps supplemented by some basic health and safety training. In high risk organisations the planning may require expert consultants and liaison with not only emergency services but also neighbours. But simplicity and user-friendliness should be retained; in an emergency no one has time to study complex procedures.
Consideration will have to be given to setting up a control centre which will take charge, including during shift work when senior management must first be called from home. Equipment may be needed, not only for fire-fighting, but also for protecting people and the environment.
Once the plan has been prepared, that is not the end of the matter. Informing and training staff and others who may come on the premises is vital. Drills and exercises must be conducted, initially to validate the plan and to familiarise everyone with it, but thereafter a regular schedule of tests should be carried out to ensure everything is kept up-to-date. The incident reports discussed above illustrate how often this is lacking.
In the past, the lack of suitable emergency plans has frequently caused companies loss of competent staff and/or damage to property with costs of restitution. Disruption may have had impacts on productivity and profitability. Adverse publicity may have also taken its toll on demand for their product. To all this can now be added the threat of prosecution for corporate manslaughter.
Dr. Roger K. Bentley, FRSC, FIOSH, is a chartered chemist, registered safety practitioner and principal of Astley Chemical+Safety. He is also contributing author at Croner
For more information on how your business can tackle the Corporate Manslaughter and Corporate Homicide Act visit www.croner.co.uk/corpman and purchase our book Croner Corporate Manslaughter and Corporate Homicide Act: A Guide
