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The blame game
Business Travel World – October 2007

New corporate manslaughter legislation means travel managers will have to put pressure on TMCs to provide correct information, says Mark Smulian

There is nothing like the possibility of being hit by an unlimited fine to concentrate the minds of senior managers.

That will be the penalty for convictions under the Corporate Manslaughter Act 2007, which was passed in July and takes effect next April. And corporates face the prospect of conviction should any of their staff die while on duty in situations where their employer was negligent.

With this threat hanging over them, travel managers will want to know they are getting the best advice on any situation in which an employee might be in danger, and that if there are potential risks, the person concerned can be contacted.

An unlimited fine is a serious penalty, but worse could be the damage to their reputation suffered by a company convicted of corporate manslaughter - 'Scroggins Industries, we kill our staff' is not the sort of slogan with which any business would wish to be associated.

Travel managers will be paying closer attention to staff safety than ever, particularly when they are in an unstable part of the world or using an airline with a questionable record.

Travel management companies will have to be able to give accurate advice on the risks involved in any destination, accommodation or mode of transport, and be able to demonstrate that they have given the advice required under the terms of their contract with their client.

Ian Skuse, a partner at law firm Piper Smith Watton who specialises in travel and a BTW columnist, says the new law will look at whether managements have caused death through some major failing in health and safety.

"For travel management companies the issue will be whether they knew or should have known of a potential risk or danger, in particular overseas, and failed to pass on to their client," he says.

"If a trip is to a place with a problem, or involves a hotel or car hire firm that has been complained about before, they should know about that."

Whether a travel management company could actually be prosecuted is something of a grey area.

It appears unlikely, but Skuse advises that failing to pass on travel advice from the Foreign and Commonwealth Office could be an issue. Another issue is knowing that a travelling executive suffered a medical condition which required them to be within reasonable distance of a hospital but not making arrangements to accommodate that need.

"A travel management company would not need to know the medical condition of everyone they deal with, but if they had been told that someone had, say, diabetes and needed to be near a hospital it would be a problem if they ignored that," Skuse says.

Other examples might include booking someone into a hotel known to be dangerous, or booking someone onto an airline that had been denied UK landing rights by the Civil Aviation Authority due to a poor safety record.

Another legal specialist in this field is Clive Fletcher-Wood, a partner at Bristol law firm Burges Salmon, who has acted for train operators in a number of fatal accidents.

He says: "The main thing a travel management company should do is to review the contracts they have with clients to see to what extent they are responsible for giving advice.

"It will need to review the scope of the advice it is required to give, but the client cannot delegate its health and safety responsibility to a travel management company."

Depending on the contract terms, the travel management company might merely need to state: 'you will be aware parts of this country can be dangerous and you should take proper advice', or it could have to provide something more detailed.

Fletcher-Wood says: "Assuming they flag up the risk, it is hard to see that a travel management company could face prosecution under this new law. "Whether a client could take civil proceedings against it for negligence would depend on the scope of the agent's duty, so once again review your contracts.

"If you run a safety-conscious airline or rail operator already there is no need to change, but your decisions must be well minuted, so that policies and the results of risk assessments are clear and can be demonstrated."

Even if contracts appear watertight, it would still be advisable to make these checks because there are safety campaigners and trade unions who have waited a long time for this change to the law, and will seek every opportunity for prosecutions.

Fletcher-Smith says: "The government has said it expects only five to ten cases a year, but I think there will be far more, because there are campaigners who want to see prosecutions of 'bosses' in big companies and who will press the Crown Prosecution Service to act."

Corporate risk consultant Roy Thornley is one of few people to have secured a corporate manslaughter conviction under the old law. This happened when he was the police officer investigating a tragedy in Lyme Bay, Dorset, when four child canoeists were killed.

Thornley says: "It was almost impossible to prove that any individual had caused deaths through gross negligence under the old law.

"One of the key things is the new law allows you to address collective failings on the part of senior managers to do the right thing."

Thornley expects the new law to have a galvanising effect on corporations' awareness of these issues.

"Manslaughter is a very much more serious offence than a health and safety breach," he says.

"Organisations prosecuted would have to show they had risk assessed their operations and done everything reasonable to ensure risks were controlled.

"Conviction would cause serious damage to the reputation of any company, and for some that would be a worse penalty than a fine."

Anvil Group, originally a supplier of personal bodyguards but now a manager of business travel risks of all kinds, also thinks travel management companies will have to be on their toes.

Director Matthew Judge says: "A lot of people in corporates will be taking note of the new law, so they will be asking questions of their travel management companies on tenders and requests for proposals about the quality of their risk management.

"Clients will want to know what policies they have to minimise risk to their staff travelling aboard."

A travel management company could perhaps be called upon to show how it would get a client out of a major crisis, and that it uses reputable suppliers.

The requirements could change with the business concerned. For example, oil companies sending staff into some odd corners of the world would have to accept more risks and use whatever transport is available.

"Tenders will be seeking information about policies to ensure safety because the duty of care rests with the corporate, and they are under pressure from insurers," says Judge.

From the travel management viewpoint the new law demands attention to the advice given to clients and the ability to walk a fine legal line, says Andrew Waller, executive vice-president UK of Carlson Wagonlit Travel.

He says: "It will have a massive impact on how TMCs work with corporates, though not on TMCs' liability, except for their own employees.

"Security for travellers has come to the fore recently and this will take that further."

This need not merely concern dangerous situations and dodgy carriers. A client could face prosecution over its policy on staff travel. Waller gives the example of an executive who has been overseas with a punishing schedule and who then lands at Heathrow at 6am and has to drive for three hours, during which the office calls and asks them to go somewhere else, and in the course of that journey they suffer an accident.

"That employer would be pretty liable," he says. "We can play a supporting role to ensure that clients have travel and hotel policies that minimise risk.

Liability falls on employers, but we can work with them to ensure that their policies are compatible with the new law."

But he says travel management companies must not cross the line into "taking on a role as a lawyer".

"Our business is about providing a service to clients in all areas of operation, security, transport and everything else," Waller says. "We have to be very careful that we are not taking on a role as a lawyer, because the legal liability remains with the clients we counsel."

A travel management company can tell a client about the situation at a destination to the best of its knowledge, but should not try to make judgements on whether or not the client would be at risk of a corporate manslaughter charge by sending someone there.

Waller says travel management companies can help clients in exercising their responsibility for health and safety by briefing and updating them "based on the best of our knowledge, on what other clients are doing and what is happening in the market".

That could be fairly basic information, but that would be useful in particular to a travel manager in a smaller company who might not easily be able to discover this for themselves.

"We have to walk a fine line of saying 'this is what we know about a destination' and then let the client make a decision based on that, which is different from us saying, 'this place is safe'. "Fundamentally, it is not for TMCs to take on the liability that legally belongs with the client."

There are likely to be many people seeking opportunities to use the long-awaited new law to secure corporate manslaughter convictions from next April, and any businesses that sends its staff into dangerous situations, for whatever reason, could be at risk of prosecution.

Good health and safety policies, backed up by sound risk assessments, should help most corporates to stay out of trouble.

Travel managers will need to be clear about the advice they want from their travel management companies and how they will ensure that advice is as accurate as possible.

The Corporate Manslaughter and Corporate Homicide Act 2007

Companies can be prosecuted when gross failures in the management of health and safety lead to death.

Removes the need to prove someone is a company's 'directing mind', collective management failures can attract prosecution.

Removes crown immunity, so government departments can be prosecuted.

Provides for an unlimited fine, and judges can impose remedial orders to correct faults.

Puts liability on corporates for their employees' health and safety, not travel management companies (except for their own employees).

Means travel management companies will need to ensure the advice they give clients is accurate and in line with contracts.

The term 'corporate homicide' is used only in Scotland.

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