ANY new law courts controversy but none more than the Corporate Manslaughter & Homicide Act that came onto our statute books this spring. Because there has been no test case since then - fortunately for every employer - the ramifications and remit of the law has been open to much interpretation.
Speak to so-called industry observers, learned practitioners and even lawyers and each will give you a different slant on what it means to be found negligent under this new law.
But however it is finally interpreted by a judge in a criminal law case, it should be ringing alarm bells NOW, to one and every employer in the land. At our annual conference in October, the subject matter raised great debate.
While awareness is high, action is definitely lacking. Some travel arrangers had tried and failed to get the subject put on the agenda in their boardrooms; others had been told that it was nothing to worry about; more still are not sure what they should be doing if they do receive the go-ahead to act.
The facts are that this law touches every part of a traveller's time at work – in the office, car, train, plane, hotel or meeting venue. An employer's duty of care to its employees is not new. Since 1974 the Health & Safety at Work Act has driven this issue. Duty of care hasn’t changed, it’s in common law but has been absorbed into the new legislation.
Cynthia Barbor, partner in law firm KL Gates, tried to shed light on the Act recently when speaking at the management Solutions/ACTE Forum. And she didn’t beat about the bush.
”What’s changed is the penalties on conviction as there is now an unlimited fine, which is serious as it used to be comparatively low but they want to hit shareholders where it hurts.”
She talks of fines being up to 10% of turnover, not gross profit, in a bad case. There will be a sliding scale; the fine will be bigger if a big company is prosecuted for management failure.
Just where the liability stops and starts is a moot point. Barbor believes it will be “anyone who manages on a day to day basis, such as a travel manager in HQ or a project manager on a construction site.”
If companies are found negligent, any judge will look at three areas: forseeability, proximity (the relationship between employer and employee) and reasonableness (should you have known? Did you make reasonable enquiries)” explains Barbor.
“Business travellers have to have a responsibility for themselves but employers and TMCs must have the right information to make an informed choice.”
The Act’s territorial jurisdiction is “an interesting one” says Barbor. She believes that the Act “applies where harm resulting in death is sustained in the UK” but she asks, how do you define harm? “If you have a warning of a nasty event overseas yet a British company ignored that warning and someone dies, I would prosecute as the harm resulted in a decision made in the UK.”
Other lawyers think differently on the territorial jurisdiction issue and believe British companies will be free from prosecution if the harm occurs abroad. This confusion over the letter of the law does not help travel managers and the confusion will not be clarified until there is a test case.
There is more clarity from a situation where harm results from a traveller booking outside policy. Barbor believes a company cannot be responsible for that. “You’ve got to keep your feet on the ground on this one. You’re required to take reasonable steps,” she says.
Similarly, asked if a company would be liable if a traveller drove after a long flight, had been drinking and then had an accident, Barbor replied definitively: “ No, you’re not nursemaids.”
Matthew Judge, Managing Director of Anvil, said companies should undertake a risk and vulnerability assessment on the destination and the individual as there would be one level of security in place for the CEO – as the risk is greater - and another for a sales executive.
“You have a duty to warn,” he said. “A corporate can’t discharge liability to a third party supplier,” he said.
If you do manage to set up a paper trail of checks and cross-checks, fellow speaker Sue Kavanagh, former Director of Human Resources UK at CWT, highlighted the corporate benefits: “There are some good spins to the legislation too; it puts out a very strong message to staff that you’re responding in this area. It helps promote you as a good employer and it could help recruitment too.”
And let’s not forget that this legislation is timely; it can be used as a catalyst for change and that’s where travel managers can really score. They can sieze the opportunity, under the guise of the new law, to push for more rigid travel policy compliance, promoting it as traveller safety and employee duty of care.
Tighter travel policy compliance will mean more volume going through preferred suppliers and a gain of what everyone is striving for, something extra on the bottom line.
