Vertex Law

Act now or repent at leisure

by Sarah Whibley

Why a new Act of Parliament could have serious consequences for food processors.

Bosses in the food industry need to wake up to the implications of new legislation that could see their businesses facing charges of causing death by health and safety failings as well as the threat of unlimited fines.

The Corporate Manslaughter and Homicide Act, which came into force on 6 April, affects businesses of all sizes and across all sectors of the economy and introduces an important new element in the corporate management of health and safety.

Because of its emphasis on safety issues relating to transport, food and the workplace, the Act is likely to bear down particularly heavily on the food processing industry.

Given the machinery that is often in use, food processing plants clearly have the potential to be dangerous environments and most companies in our sector have wised up to the importance of making sure that employees on the factory floor carry out their jobs in a safe and responsible manner.

Likewise, we should all already be well aware of the critical role that hygiene plays in our industry. Again, the dangers of allowing poor standards of food handling are pretty self-evident.

But what about transport?

To my mind this is likely to be the area that causes the most difficulty for food processors – and is an area that the industry needs to pay attention to, and fast. 

According to the Health and Safety Executive, it has been estimated that up to a third of all road traffic accidents in the UK involve somebody who is at work at the time. This may account for more than 20 fatalities every week.

In the past, organisations could only be convicted of manslaughter (or culpable homicide in Scotland) if a ‘directing mind’ right at the top of the management tree was also personally liable – generally, something that was difficult to prove as well as being divorced from the day-to-day reality of how most businesses are run.

Under the new rules, though, organisations will be judged on the way that their activities are organised and managed as a whole – so the scope for falling foul of the new legislation is much broader and the responsibilities on mid-level managers much greater.

Anyway, back to the issue of transport.

Every time one of your delivery lorries goes out on the road you could be risking a prosecution under the Act.

If something goes wrong and there is an accident in which your driver or a third party is killed, you can expect a visit not just from the Health & Safety Executive but also from the police.

Aha, you say. When we recruited the driver we made sure he had passed his LGV test and the vehicle he was driving had a current MOT. So, we must be in the clear.

Wrong. When was the last time his health was assessed? Had he been given induction training on the vehicle he was driving? When had he last been to the optician? Was his schedule too punishing? Was he working too many night shifts? Who checked whether he was taking regular breaks? Why was the windscreen fluid container empty?

The same could equally apply to an accident involving one of your sales reps, even if they were using their own car.

If you can’t demonstrate that issues like these are addressed in a systematic way on an ongoing basis, the powers-that-be may well decide that you are failing in your duty of care to your employees. Prosecution could then follow.

In addition to unlimited fines, possible sanctions include remedial orders – requiring a company to remedy any failures – and publicity orders, meaning they must publicise the fact they have been convicted.

Supporters of the legislation say it helps fill a gap in the law that will help bring negligent companies to account. It is also claimed that the threat of conviction will be sufficient incentive for companies that consistently fail to meet proper standards to get their act together. That may mean that reputable operators will no longer have the frustration of seeing business lost to corner-cutting rivals. Opponents of the Act doubtless see it as another bit of Government interference and yet more time-consuming red tape.

Whichever interpretation is correct, the indisputable fact is that the legislation is now in force and the food industry must pay attention to it. For further information contact your local Business Link. After that, if you are in any doubt as to how it will affect you, then take legal advice straight away.

Sarah Whibley has a specialist knowledge of the food industry and is often seconded to support in-house legal teams in larger businesses or to provide ongoing advice to smaller companies.