The new law is based on the Duty of Care that already exists in the civil laws of negligence. Where fatalities occur, juries will have to consider whether there were management failures which constituted a gross breach of the duty of care. It is no longer necessary to prove that a fatality was the fault of one person (the concept of the “directing mind”) which made it difficult for large businesses to be prosecuted and meant it was generally small businesses and one-man bands that were successfully prosecuted in the past.

Now, senior managers as well as board directors will have to show that it was not management failings that resulted in a fatality. Consideration would be given to existing Health and Safety policies, training and risk assessment. Any delegation must be done effectively and responsibility must be assumed to ensure proper management. Putting policies on an intranet will not be sufficient. Best practice will be to give one person responsibility and to ensure that there is clear communication throughout the business, together with a no- blame culture so that employees feel able to report near-misses, to avoid a future recurrence. There must be no tolerance of potentially dangerous situations.

Several options will be available for sentencing. The first is an unlimited fine. The fine is meant to hurt – the current proposal is that the fine would be between 2.5 per cent and 10 per cent of gross annual turnover, based on the last three-year average. This does not take into account profitability and in some cases could cause the business to fail.

A further sentencing option is to order the business to advertise details of what happened, the conviction and fine. Courts will also order steps to be taken to address the failures.

It is inevitable that accidents will still happen, but when they do companies will need to show effective systems in operation and that the failing was not a systemic failure but a ‘one off’ incident where the normal practice was not followed. To be convicted, failure must have been at a senior level and the organisation’s conduct must have fallen far below what could reasonably be expected.

While individuals will not be prosecuted under the new Act, directors, senior managers and other individuals can already be prosecuted for gross negligence, manslaughter and for other Health and Safety offences. This will not change and individual prosecutions will continue to be brought where there is sufficient evidence and it is in the public interest to do so.

The message here is clear. Allocate adequate resources and ensure that where something is found to be wrong, that steps are taken to rectify it straight away. A safety culture must be driven from board level and must be an integral part of the business, otherwise organisations face crippling fines and reputation-busting exposure.

l For assistance with civil or criminal litigation matters, please speak to Christopher Newton on 01423 722567.