In light of the recent tragic event in Harlow, Essex. How confident are you that you are fully covered for any Health and Safety incidents in your day nursery? Tragically a 7 year old was killed a few weeks ago when a bouncy castle blew away during an event. It was widely reported at the time that a man and a woman, thought to be connected to a family run company had been arrested on suspicion of manslaughter by gross negligence.
What is corporate manslaughter?
There has been much talk over the last few years of the relatively new offence of corporate manslaughter and how that has taken effect but what many people don’t realise is that the offence of manslaughter by gross negligence still remains and that is alleged against the individual person not just the corporate body where it is thought appropriate. If there were to be such a tragic accident occur on any nursery property it is highly likely that the HSE and police would investigate these potential crimes. It can be extremely frightening to face such an allegation.
To be clear in order to be found guilty of manslaughter by gross negligence the prosecution would have to prove that a duty of care existed between the alleged offender and the victim; there would have to be a breach of that duty of care which caused or significantly contributed to the death of the victim and that breach could be said to be grossly negligent.
What about the regulatory aspect? The role of Ofsted
Following the criminal implications there is also the Regulatory aspect to consider, Ofsted are likely to get involved immediately to ascertain where there are failings and look to see if they had noted any relevant errors on previous inspections. This can then lead to losing your registration and the business being unable to trade.
The legal issues involved in the health and safety regulations and legislation are so complex it would be very difficult to try and defend yourself without expert help from an experienced solicitor. Equally it is important that these risks are considered when taking out your insurance cover. One way through this would be to consider an add on policy covering Directors and Officers for legal fees. Nobody ever thinks they will need such cover but when tragic accidents happen it is vital that you are able to protect yourself and your business without worrying about the cost of it.
Following the criminal implications there is also the regulatory aspect to consider, Ofsted are the regulators in services and care for children and young people, when an incident occurs they will get involved immediately to ascertain where there are failings and look to see if they had noted the relevant errors on previous inspections. This can then lead to losing your registration and the business being unable to trade.
Written by Rachel Adamson, partner at Stephensons Solicitors LLP
