The new offence was created to provide a means of accountability for very serious management failings across the organisation. The original intention was to overcome the problems at common law of 'identification' and 'aggregation' (the prosecution could not aggregate the failings of a number of individuals)
The offence under the CMCHA 2007
Section 1: The offence
1. An organisation to which this section applies is guilty of an offence if the way in which its activities are managed or organised —
a. causes a person's death; and
b. amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.
2. An organisation is guilty of an offence… only if the way in which its activities are managed or organised by its senior management is a substantial element in the breach
Elements of the offence
The following needs to be proved:
a. The defendant is a qualifying organisation;
b. The organisation causes a person's death;
c. There was a relevant duty of care owed by the organisation to the deceased;
d. There was a gross breach of that duty; and
e. A substantial element of that breach was in the way those activities were managed or organised by senior management; and
f. The defendant must not fall within one of the exemptions for prosecution under the Act.
Therefore the Court will have to consider how the fatal activity was managed, or organised, throughout the organisation, including any systems and processes for managing safety and how these were operated in practice. A substantial part of the failure within the organisation must have been at a senior level.
Companies must not only look at risks within the workplace but also outside. For example, those who drive for work are exposing themselves to the risk more often. Whether companies provide vehicles or expect employees to drive their own for work purposes, they should have a policy to address the issues.
Why is it important?
Car drivers who cover 25,000 miles or more as part of their job have almost
the same risk of being killed at work as construction workers.
There are between 800 and 1000 UK road deaths per year involving vehicles being driven for work purposes, and there are over 77,000 injuries to employees every year as a result of 'at work' road accidents.
Who is most at risk?
Bus drivers, HGV drivers and delivery drivers can spend their whole working day driving, as can sales reps and maintenance workers. But anyone who is driving as part of their work duties could be at risk.
It is vital that employers take steps to reduce the risks associated with driving for work especially since drivers are out of sight. Norwich based Bowmonk Limited has for years assisted organisations in making sure that drivers who are 'out of sight' are not out of mind. By supplying companies with an In Vehicle Monitoring System (IVMS), Bowmonk’s IVMS provides a means of reporting on how a vehicle is being driven. The IVMS devise provides data such as vehicle speed, hours driven, seatbelt use and much more. By viewing these reports a company can establish whether or not the driver is driving the vehicle safely and within the company’s guideline. UK Police forces have used these with great success and have seen a reduction of as much as 25 percent in police vehicle accidents.
A further advantage is for use in driver training purposes. The IVMS assists in showing incidents of heavy braking and acceleration which, if not addressed, may result in accidents.
For more information please contact Ernie Hill
Tel: +44 (0) 1603 485 153
Ehill@bowmonk.com www.bowmonk.com
