The noose has been steadily tightening around the proverbial corporate neck as awareness increasingly grows relating to the responsibility of employers towards the safety of their employees. There have now been over 30 prosecutions under the Corporate Manslaughter and Corporate Homicide Act 2007 and the fines imposed have been high, often over GBP500,000. Employers face potential civil and criminal liability and being liable for substantial damages or, heavily fined. In the case of Directors, they can be disqualified for up to 15 years and/or imprisoned. This liability exposure increases when it comes to companies conducting their operations across the globe. The same applies to Health and Safety Offences, with more individual Directors and individuals being sent to prison.
Risk scenarios in a global setting
In Dusek & Ors v StormHarbour Securities LLP (2015), the employee, a Mr Dusek who came from a financial background, was employed as managing director by StormHarbour Securities LLP. StormHabour is a financial services firm specialising in capital markets.
Whilst in Peru in 2012, working on a project for the financing of a proposed hydroelectric complex in the foothills of the Andes. Mr Dusek died in a helicopter accident on the way back from a site survey.
The helicopter crashed into a mountainside having exceeded the permitted height it could fly to – the unforgiving terrain, night conditions and bad weather all being contributing factors.
The Court of Appeal upheld the High Court’s decision to hold StormHarbour liable to pay his estate damages. Even though Mr Dusek was a highly intelligent, senior employee with a high degree of autonomy, and even though the trip had not been organised by the employer. StormHarbour’s duty to take reasonable care for Mr Dusek’s safety was held to be non-delegable. This included the employer’s duty to carry out a careful assessment of the risk in relation to the helicopter flight that Mr Dusek was planning to take. The helicopter company had previously had near misses, and the pilot lacked certain qualifications.