February 07, 2008 - The spate of high profile transport accidents over the past few years, predominantly in the railway industry and including the Ladbroke Grove, Hatfield and P&O Ferry disasters, has put the accountability of corporations and their directors high on the agenda for debate by both the public and the Government. Other similarly high profile cases have foundered in recent years over the inherent difficulty of identifying specific individuals within large corporations who might be held directly accountable for fatalities because of their organisation’s failure to manage its activities properly.

The Corporate Manslaughter and Corporate Homicide Act 2007 comes into force in April, creating the new offence of corporate manslaughter. The Act provides accountability whereby companies, as opposed to individuals, can be held accountable for breaches of health and safety that lead to an employee’s death. This means that, for the first time, a company can be found guilty of manslaughter.

In 2005/6 there were nearly 6,500 accidents involving fork lift trucks and related machinery (HSE statistics). Of these, 1,433 were of ‘major severity’ and 9 were fatal. With workplace transport high on the risk agenda, this new legislation is of particular relevance to the materials handling sector, both for suppliers and users of equipment.

If, in the circumstances following a death, investigation by the Health and Safety Executive and/or the local authority reveals a complete failure to comply with laid down health and safety requirements, prosecution of the company for corporate manslaughter is a real possibility. This can lead to a heavy fine.

Colin Witherall, senior partner at Alsters Kelley solicitors advises: “Under the new Act it is no longer a prerequisite to identify the negligence of an individual director or senior manager in order to prosecute the company. If the strategic management of the company has failed to a degree far below what can reasonably be expected of the organisation in the circumstances leading to the death of an employee or member of the public, then the company itself is liable to prosecution. At face value, prosecutions should therefore be easier to secure.” Of course, the term “senior manager” is not just referring to directors of the company, but to someone who plays a significant role in (i) the making of decisions about how the organisation’s activities are managed or organised, or (ii) the actual managing or organising of such activities.

“The Act serves to complement the current health and safety laws,” continues Witherall. “It does not introduce new obligations but reinforces the importance of full compliance with current laws. For companies operating in the materials handling sector this means playing due credence on the systems and procedures to avoid accidents and possible fatalities. Put simply, it is a matter of considering whether the company has met its obligation to protect a person’s personal safety. And this duty of care extends to visitors to site and contractors etc.”

Hence customers and fork lift truck suppliers alike will need to be vigilant about their duties. This is especially the case if a fatality arises from circumstances which may have previously occurred (and resulted in a near miss or minor injury) and no remedial action was taken at the time. Failure to take remedial steps reflects on the way the activities of the organisation were managed/organised, which is the criteria under the new Act.

Chris Clark outlines four areas pertinent to the handling of materials where directors and senior managers might well want to take stock of how they “manage and organise their company’s activities”.

1. Selection process for, and ongoing service and maintenance of forklift trucks: it seems pretty obvious to say, but any work equipment brought onto site should first be assessed for suitability, safety and maintenance requirements. Has the company completed a site survey in conjunction with the fork truck supplier to understand where the truck will work, what operations it will be required to carry out (weight and configuration of loads), what hours usage per day is anticipated (to calculate service requirements)? What are the current levels of training and has this been refreshed? What new training may operators require to update their skills (if a new model or indeed a completely new product)?
2. Fork truck fleet size and hours of operation: is the company’s fork truck fleet at an optimal level to meet the operational requirements of the business? Are operators working long hours to meet demand, are fork trucks being overworked (both in terms of hours usage and in terms of the tasks they are required to perform), are trucks lifting loads for which they are unsuitable?
3. Risk assessment process: is there a suitable risk assessment in place for the activities carried out and are the necessary controls identified by the assessment followed? Have all the employees been trained and instructed in the controls required to minimise the risks identified by the assessment?
4. Maintaining the Workplace environment: the environment in which fork trucks operate has a major bearing on their safe use. Consideration must be given to the condition of the working site. Potholes in the yard, poor lighting, lack of warning systems/signage, lack of pedestrian segregation from trucks, poor storage and blocked access ways are all typical examples of issues which can lead to accidents.

Health and safety must be embraced at all levels in the organisation as part of the way of doing things. Just setting standards is not enough. Companies need to ‘walk the talk’ to ensure that health and safety is being properly managed on the ground.

- Ends -

Media contact:
Tiffany Clowes
Changeworks Communications
T. + 44 (0) 1785 247588
E.

Company Contact:
Scott Bullock
Briggs Equipment
Orbital Way
Cannock
WS11 8XW
T: 01543 430 455
W: www.briggsequipment.co.uk

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