Jail threat for rogue fleet operators
Legislation
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ROGUE company directors and managers – including fleet operators – that turn a blind eye to occupational road risk management could find themselves being jailed for up to two years following implementation of the Health and Safety (Offences) Act 2008...
Geoffrey Bray
The new Act will be implemented on January 16, 2009 and amends the sentencing provisions contained in the Health and Safety at Work Act 1974.
The Act is aimed at punishing individuals just as the 2007 Corporate Manslaughter and Corporate Homicide Act, which was implemented in April this year, targets rogue organisations.
However, unlike the Corporate Manslaughter and Corporate Homicide Act a breach of health and safety rules will not have to result in a death.
Extends
The Health and Safety (Offences) Act 2008 extends the £20,000 maximum Magistrates’ Court fine to a wider range of health and safety offences for which fleet managers and fleet decision-makers, including directors, could be prosecuted for, to up to two years in a prison, if convicted in a Crown Court, a fine or both.
Health and safety legislation could be used to prosecute an employee whose management failings resulted in a car crash that was caused by, for example:
- Illegal/unsafe tyres
- A poorly maintained vehicle
- An employee being forced to work long hours
The Corporate Manslaughter and Corporate Homicide Act has been influential in encouraging organisations to introduce comprehensive at-working risk management strategies in a bid to cut the likelihood of an employee on a business trip being involved in a crash.
Driver licence checking, on-line risk assessments, driver training, ‘Permits to Drive’ and telematics are all part of the arsenal of safe-driving interventions being used by many businesses to improve the safety of their employees who drive company or their own vehicles on work-related journeys.
Now the Health and Safety (Offences) Act 2008 has become law amid concerns among MPs and peers that existing punishments for individuals that breach health and safety laws are too low.
Health and safety specialist lawyer Michael Appleby, of Housemans in London, who is an adviser to Fleet Support Group and its RiskMaster at-work driving safety programme, said: “Those investigating a road crash will aim to identify who is responsible for managing occupational road risk. Where no evidence of an organisation planning, delivering, monitoring and reviewing road safety can be found charges could result.
“Businesses must be able to demonstrate how they manage road risk and that someone is responsible for managing that risk. But bosses cannot simply delegate the management of that risk and expect no comeback if things go wrong. Fleet managers must be given the support, the tools and the authority to be able to manage the risk effectively.”
Implementation
Geoffrey Bray, chairman of Fleet Support Group, which manages more than 50,000 vehicles and is a champion of the Government’s ‘Driving for Better Business’ programme, which is managed by RoadSafe, said: “We frequently hear of fleet managers who have recommended the implementation of safe atwork driving initiatives only to be overruled by their bosses and company directors. This new law should put an end to that attitude.
“There also remains, in many companies, an underlying apathy towards road safety. A well managed business manages safety well, and this Act gives further impetus to ensure organisations that remain ignorant as to their responsibilities take action.”
At the moment there are very few health and safety offences that result in an individual going to prison. In fact, perhaps the only likely case where prison is a possibility is in the event of a breach of a prohibition notice.
Defended
Mr Appleby, who successfully defended Balfour Beatty against corporate manslaughter charges following the Hatfield rail crash in 2000 in which four people died, added: “Presently a director/manager would have to be charged with gross negligent manslaughter to be sent to prison where the sentence would typically be 18-24 months. But, this Act changes that and, crucially, a death does not have to have occurred. Prosecutors will only have to prove a breach of health and safety.
“The range of sentences open to courts is now significantly increased. Prison will become an option that has not existed before in most cases, but it will be reserved for the most flagrant breaches.”
He added: “If I was prosecuting a company under the Corporate Manslaughter and Corporate Homicide Act I would want to bolster my prosecution with a couple of managers/directors also being charged under health and safety laws for neglect and failing to ensure the health and safety of employees or other people.”
GUIDELINES for courts in sentencing organisations convicted under the Corporate Manslaughter and Corporate Homicide Act 2007 are expected to be published in spring 2009.
Twelve months ago the Sentencing Advisory Panel published a consultation document that recommended that organisations found guilty under the Act should be subjected to:
- Fines based on average annual turnover – possibly around the 10% mark that would amount to millions of pounds for major organisations
- Publicity orders – including the placing of an advertisement in newspapers and trade journals or on television or radio as well as ordering letters be sent to shareholders and customers.
- Remedial orders, which would force convicted companies to implement a series of measures to ensure there was no repetition of the fatality.
The Sentencing Guidelines Council is currently considering the Panel’s advice following responses to the consultation document. A spokeswoman for the Council told RoadSafe: “We expect it to be spring 2009 before guidelines are published. The guidelines will then be taken on board by the courts when sentencing for offences committed under the Corporate Manslaughter and Corporate Homicide Act.” See Guest opinion.