Preparing for the worst case scenario

Published:  01 July, 2008

Corporate manslaughter
Tim Hill, regulatory associate from Eversheds Crisis Management Service, talked about the implications of the Corporate Manslaughter and Corporate Homicide Act 2007 which came into force in the UK in April 2008.

A new area in legal terms, Hill pointed out that companies are beginning to wake up to the potential fines and bad PR that go with these types of prosecutions.
The culture of health and safety is changing as a result of the Act, and paying lip service to health and safety isn’t an option. “Nine times out of ten regulators will be told that a company has good systems, but when they start picking away and talking to people, the pretty picture quickly disappears due to the level of scrutiny that is now going on.”
In times of an incident, how companies react to investigators’ demands for documents and information is vital from day one. “It is now no longer about going through exercises. It is now about how regulators think you would do in a serious incident.”
Companies still don’t understand that ultimately the new status quo is about managing liability – not just in a financial sense, but also in the sense of how an adverse incident can impact on business and staff. “The management time involved is enormous and there are hidden costs that often lead to management changes. There are many unquantifiable liabilities you have to be aware of.”
A fundamental difference between pre- and post-Act incident investigations is in who leads the investigation. And it is now the case that police officers are now leading investigations into nearly every fatal incident.
In the past, police officers would have been notified that an incident had taken place and usually then an investigation would have been handed over to Health and Safety Executive officers.
“In the last five weeks, since the act came in, my team across the country has handled six or seven fatality cases all of which have been police-lead.” Among the investigatory powers are the right to enter premises; examining and investigating; taking samples; requiring a person to give answers to such questions as they see fit; making copies of entries in books or documents.
Working with the police brings its own set of challenges, as here is an agency that is not necessarily familiar with the workings of industry or its management systems and various internal levels. And neither is industry used to working with the police.
“The speed at which police investigations happen is frightening. While health and safety investigations are very limited by resources, the police will come into your offices day or night with a team of 10 or 15 officers and they will start sifting through evidence.
“The fear factor from your staff cannot be overestimated enough, and part of my job is to communicate with staff about this process, explaining that just because the police want to talk to them does not mean they are suspected.” Managing the process translates into making sure staff feel supported by their management.
In a recent case, said Hill, a director was charged with an offence under Section 37 Health and Safety At Work etc Act 1974, after a child had died on port docks that he owned, even though the said director claimed not to know that people were taking their children to work and allowing them to run around. “The court said it did not matter – he should have known.
“That is saying to businesses that you have to know what you don’t know: and that your systems should be so robust that you know everything that is going on. That is a fairly worrying development.”
Under the old corporate manslaughter law an individual had to be identified as a “directing mind”, and in the many years that this rule had been in place only seven convictions were carried out. In these cases the companies involved were small and with one or two directors, so the “directing mind” was highly visible. “And that is why for so many years there have been no convictions for the big companies that have the complex organisational structures.”
Complex organisational structures no longer necessarily provide protection from corporate manslaughter liability. Neither are businesses covered via the supply of reams of health and safety information.
Presently it is about verifying that employees are taking health and safety information on board and following through with recommendations – otherwise charges of  “gross management failings” may follow, explained Hill.
“How it works in practice is the police come in, interview 15 witnesses and get lots of evidence of people saying, ‘I have never seen this policy or that info’. They will start investigating any manager and take them to a police station,” said Hill, citing one particular case.
“The MD of a US organisation had a death two years ago. At the police station, he was told that he’d been reported as being in charge of health and safety, and asked what his training was. He replied that he appointed a health and safety manager, who then reported to a director who then reported to him. He was then asked, ‘how do you know they are doing their job properly if you are not qualified?’
“This is more or less verbatim, and shows the level of scrutiny now in place. As MD he is expected to know in what way mundane activities are being carried out. At senior level at present you may not know, but you are going to need to establish channels of communication in the future.”
Safety is no longer an afterthought for good business and it is not just about ticking boxes, but acting upon findings and sharing the knowledge so that all employees understand. “If something goes wrong the police are not bothered if you are in this team or that team – they look across the whole business. Competency assurance, are people doing the right job, have you got the culture to enable people to say, ‘I want more training’?”
Moreover, verification of all health and safety routines should now be central in processes. “It is no longer about just a bit of paper with a tick saying you are OK. It is about learning lessons from near misses and making sure they do no escalate to more serious incidents.”
Dealing with the media
Sembcorp UK PR Manager Terry Waldron spoke about his experience on both sides of the media fence. An ex-journalist, Waldron has asked the questions and in his current role finds the answers to them, having been involved in handling many high profile incidents including one involving the deaths of three people. “From my perspective if you get the operational response and communications with the media right, the perception will be that this has been a well-managed response from a co-ordinated team of people.
“Get the operational aspect right and the communications part wrong, and the perception will be that the incident has been badly handled, leading to questions of whether the team is fit to run high hazard facilities.”
In terms of effective communication, the difference between success and failure can be very slim – a word delivered with the wrong intonation, or even an ambiguous fact in a statement can change the whole balance of reporting and move the message from being reassuring and responsible to the opposite. “Of course there is a need to be accurate, but we also need to be flexible enough to move quickly to get the facts into the public domain. In the first few minutes and hours there isn’t always time for the full set of rigorous checks you would apply to normal everyday communications. Your system has to be pretty slick to do that but it is not always possible and to a certain extent you have to trust to go with what you’ve got. Thankfully communications have moved on and technology has helped. Email makes the process of communication quicker and easier than in the past.”
The days of delivering “no comment”-type statements are over. Businesses and organisations can use it if they wish, but in reality in 2008 it does not work. “People are more media savvy and ‘no comment’ simply means ‘guilty as charged’ to most people.”
A simple, concise, factual press statement followed by regular updates is still the best method for conveying factual information in the early stages of an incident and one that has proved itself many times. In an emergency situation all the information you need may not be available straightaway, but some simple straightforward facts can have a big impact; who, when, where, why, has anybody been hurt, is the public in any danger?
“It is surprising how much you can say to reassure people. It is usually possible to be confirm that an incident is taking place; say where  give the name of the company involved; say what time it started; give the names of the external agencies involved in responding to it; confirm if people are not in any danger, or advise action if there is a risk – perhaps that people should stay indoors and close windows and doors.
“In short, it is usually possible to get eight or nine solid chunks of information in the absence of more detailed data that isn’t available yet – buying yourself some time basically.”
In my experience people are very reasonable and generally appreciative of being given information. They do actually recognise that you won’t have all the detail. If you can close that external communication loop early on and give local stakeholders such as councillors and other key residents and community organisations information at the beginning, they can be your ambassadors thereafter. At the end of the day just the knowledge that the authorities are working together is reassuring.”
Jim Wilson, former TV presenter and a specialist in external media management training with Polo Media, talked about the challenges in dealing with TV journalists. “I have come to realise that for any chemical professional, facing the camera is one of the most personally challenging parts of an incident. Within our set bands we are used to interacting with colleagues and people who know our business and who have different roles. On the other side of the microphone, you are dealing with external media, you are dealing with a person who may know very little about your business and about industry in general. There is a lot of ignorance about your industry.”
People at home see worrying images of chemical plants with big smoke plumes – and probably also images from previous incidents around the world such as Buncefield or Bhopal.  “News is about exciting things so they bring out emotive images of things that have gone wrong in the past, and they will use them in connection with your incident.”
Keeping it simple is the key to effective communications – news is a product that moves fast. “First lesson is to present simple and brief information as quickly as possible, and keep it going. News does not stop, so keep going. You are responding to an evolving situation; the process is about reassurance that something has gone wrong but the team is putting it right. Don’t get bogged down in detail – it is not about education it is about information.”
Body language is a crucial element of the message to the viewer and a judgement is made instantly, so the body language should fit the words. “It is not just about words. Listen to the questions; keep eye contact; and deal with the questions. Don’t fall into the politician’s trap of dodging. Keep track of what you have to say and what you can say, and don’t get lead off to certain areas.
“Tell it as if you were talking to your next door neighbour. Aim for the three ‘c’s: You are capable, decent people doing a decent job. You are confident that you are a safe pair of hands. And you are never complacent.
“Corporate reputations can be made or lost at moments like this.”
The fact that images can be disseminated very quickly by members of the public that have camera phones means that investors can see what is happening very quickly. “So you have to be ready to provide information very quickly, so you are seen not as part of the problem but as part of the solution.”
Neither does an incident have to happen at your site for damage to be done. “If your brand happens to be in front of the camera, then your corporate name is associated with what’s gone wrong.”

  • Operation Florian

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