Human Resource Management - Assignment Example

?Human Resource Management Introduction: Human Resource Management Human Resource Management (HRM) plays a pivotal role in managing the employees of any organization. They help the organization in meeting strategic goals, maintaining and managing the employees effectively and efficiently and thus contributing to the overall company goals and objectives. The human resources management team performs many functions such as the following: Planning and management of workforce Recruitment Training, Learning and Development Payroll, Compensation for employees Personnel administration Labor relations Employee grievances Employee benefits Performance appraisal Management practices to confirm regulation Overall, the Human Resources department helps in organizing and deals with any issues related to compensation, safety, policies, wellness settlement, general administration, training and development. They are also expected to add value to the employees (wikipedia, 2010) Safety and Health regulations in companies Health and safety law basically safeguard the welfare of employees and general public. The law holds the person, company or organization liable for any employee injured through accident at work or death of any employee. The Health and safety team can execute a criminal prosecution against the company which may result in penalty or imprisonment against the company management. The affected employee can also seek for damages in the civil court. (wikipedia, 2010) According to the health and safety regulation act at work 1974, the organizations have the basic responsibility of Securing health and welfare of the employees at work. The organization should have a written health and safety policy. Risk Management team to access the risks involved to the employees, customers, vendors who are affected by the activities performed inside the company premises. Protecting the health of other people against risks in connection with the activities performed by people at work Supervising, controlling and managing the use of dangerous substances. Effective and efficient planning, monitoring and reviewing of the preventive measures Ensure all the employees have access to the safety measure tools and advice Educate the employees regarding health policies , risks involved (A Managers Responsibility and Liability in Health and Safety, 2008) Having an effective leadership team and effective workforce management will help the organization in protecting and safeguarding the interest of the employees. The indispensable and critical principles are- An effective leadership management team who play an active role towards assimilating strong health and safety management. Workforce involvement in promoting and achieving high safety conditions in work environment Frequent follow-ups, monitoring, and reviewing the performance of the safety measures (Health safety executive, n.d) Effects of poor health and safety measures- In 2006, approximately 30 million working days were lost due to poor health conditions and physical injuries to the employees. Approximately 200 employees are killed each year due to poor and negligent health and safety measures at work places in companies Many employees reported each year with respiratory diseases and cancers due to occupational illness (Health safety executive, n.d) Benefits of good health measures: Reduced cost and reduced risks Low employee turnover and employee absence which improves productivity indirectly Corporate responsibility among clients, partners Do you think managers should be held liable for health and safety violations? Protecting the health and safety of the employees should be one of the main focuses of the risk management team in any organization. Health and Safety plays an integral and fundamental part of the organization’s success. Management, board members and the leadership team who do not show any focus in this area would never be able to achieve the highest achievement of health and safety management and should be penalized. Failure on the part of the management to incorporate health and safety as a key business risk can result in disastrous and appalling results to the organization. The law states that the leadership team will be personally and collectively liable in the event of breach of these duties. (Health safety executive, n.d) The management should be held responsible and liable for violating the basic health and safety of the employees. According to section 37 under the health and safety at work Act 1974, in case of any health offence is committed by any organization due to any neglect on the part of the management, then the person and the management of the company will be directly responsible and can be prosecuted under this section. (Health safety executive, n.d) Corporate criminal Liability is such an important part in today’s organization. “Corporate Criminal Liability” means that the company is held liable for any criminal act done by any employee in the organization. Liability is enforced to regulate the acts of the company. (Preeti, 2010) Should they be jailed for such violations? Those found guilty are liable for heavy financial penalty or imprisonment. Individual employers are also directly liable for the death of an employee due to gross negligence and this offence is punishable under the health and safety law by lifetime imprisonment of the individual. (Health safety executive, n.d) Circumstances under which managers are held criminally liable for health and safety violations in the UK. Corporate manslaughter in the UK is considered to be a crime in several jurisdictions. The company is made liable, responsible and punished for culpable conducts in the event of the employee’s death. There are 4 important characteristics of criminal prosecution in such cases- Imperative and critical role played by the government in sending a message to all the corporate companies on the importance of health and safety norms and the consequence faced by the company in case of any negligence. Powerful enforcement agencies such as Health and Security Executive to play significant roles Protection of corporations such as proof beyond reasonable doubt. (Corporate Manslaughter, n.d) Under the English law, there are 2 offences – murder and manslaughter. If a person kills an employees without intend, it is often referred as involuntary manslaughter. According to the Crown Prosecution Service of the UK, – The accused has breached the duty of care and safety to its employees The accused also owns duty of care to the deceased In the event of the death of the deceased, it is due to the breach of care of the accused The breach of duty of care of the accused is also called as “gross negligence” as it is a severe offence. (Safe workers, 2010) In the UK, the corporate manslaughter bill states that” the organization is guilty of an offence of manslaughter if the organizations activities are managed by its management team which had caused the death of an employee” According to Clarkson, he defined six theories of corporate manslaughter and they are: 1. Identification doctrine 2. Aggregation doctrine 3. Vicarious Liability 4. Failure in management model 5. Corporate Mens rea 6. Reactive corporate fault (Corporate Manslaughter, n.d) 1. Identification Doctrine: Identification Doctrine is a traditional method by which companies are held responsible under the principles of common law. This theory is made out when a particular individual who is a senior person in control commits the offence of manslaughter. This theory has helped in prosecuting criminal actions by senior managers and directors of many big corporations. The theory clearly states the corporate entity of the company is different from the directors and shareholders of the company. This theory also states that the liability of the crime committed by a corporate entity is categorized and identified by a single person who takes control and charge of the overall operation and affairs of the company. That person is liable for the negligence committed by the organization under his supervision. In various judgments passed in various cases in 1940 such as DPP v Kent and Sussex; contractors Ltd V ICR Haulage Ltd and Moore V Bresler Ltd had concluded that the corporate entity is subjected to criminal action. (Corporate Criminal Liability- Doctrine of Identification, 2011) In the case of the Director of Public Prosecutions V Sussex contractors Ltd, the court held that the organization had the ability to form intentions through people controlling the company and the agent was prosecuted under identification Doctrine. The defense was taken that the organization was unqualified and incompetent to form any criminal intent as it was only a legal entity and did not have a state of mind. (Corporate Criminal Liability- Doctrine of Identification, 2011) Similarly in H.L Bolton Company V T.J Graham & Sons, the lawyer explained that although the company does not have a state of mind, the people involved in controlling, managing and decision making would be held responsible. In this case the lawyer Lord Denning compared the brain and the nervous system to that of the minds of the directors and the top managers of the company. Hence, in the criminal law, cases where the law requires guilty mind of the offence, the minds of the directors and the top leadership team will render themselves guilty of corporate manslaughter. (Corporate Criminal Liability- Doctrine of Identification, 2011) Lord Reid also mentioned and discussed the different types of people that can be identified within the company. He stated that the relative position the individual holds in the company and the extent of control and power he has without effective superior control in the operation. In the case of Tesco supermarkets V Nattrass, the shop manager was marketing washing powder at a price below the actual market rate but the defendant did not see any difference in the price quoted and the market price as advertised. As stated by Lord Reid, the shop manager cannot be identified with the company. (Corporate Criminal Liability- Doctrine of Identification, 2011) The doctrine of identification cannot be applied in all cases and all times. There was a different judgment viewed in Tesco Stores Ltd V Brent London Borough Council where in the store keeper had sold an over 18 video to an underage customer. The company was not held liable as the senior management and directors of the company is not expected to know each customer’s age. In this case, the identification doctrine is inapplicable. The company should clearly define that the senior management making the decisions of the company to avoid any criminal proceedings against them. In the case of R.V Redfurn & Dunlop Ltd, the court held that the employee who does not make any decisions cannot be identified with the company and hence cannot be prosecuted. If the employees commit a crime in the name of the company, the company will not be responsible or liable and cannot be accused. (Corporate Criminal Liability- Doctrine of Identification, 2011) 2. Aggregation Doctrine The reason behind criminal activity in any corporate environment is often no so clear as many levels of people are involved and hence the action is broken down into responsibilities within the company. The aggregation doctrine helps in designing the combined state of mind to be assessed as one, in order to find out if the company has committed any crime. It is the combined actions of each employee and their negligence that have resulted in the crime and the whole company is guilty of offence and acted with gross negligence. The company in general will be held liable for any crime committed by group of individuals. In the case of Bingham LV in R V HM Coroner for East Kent, ex P Spooner, was charged with aggregating and attributing as corporate fault. Gobert and Punch stated that aggregation of the crime committed can make the company as a whole reckless if the individuals acted negligently in different parts of the organization are seen together. They argued that Bingham has misinterpreted the situation bordering a conviction based on aggregation. (Aaron, 2006) Gobert explained the use of the doctrine in the Clapham Rail accident. The British railways had failed to pay closer attention to health and safety norms. The technicians and other supervisors involved also failed to adhere to the regulations. It was the collective combination of the actions of both the employees and the company that had resulted in casualties. Gobert suggested that applying the aggregation theory in this case is more appropriate in order to capture the extent of company’s liability. (Peter, 2001) This common law in the UK has rejected this approach although applied in the US and Australian courts. It is also termed as collective knowledge doctrine in the US as this theory is constructed out of conduct and information of several people. In United States V Bank of New England (1987) the court had confirmed collective knowledge for failing to file reports on currency transactions as the court believed that the banks awareness was the totality of the employee’s knowledge. Also that most of the banks and corporation segregate duties and responsibilities and avoid liability. (Wikipedia, 2011) In Armstrong V Strain (1952), it was argued that a case of multiple innocent state of mind cannot be termed as a crime. The court appealed that the collective knowledge is more appropriate if duties and responsibilities are divided among the employees. This theory appeals that the omission and negligence of two or more employees in the organization acting as a corporation can be constructed of the conduct and knowledge of many employees. In the case of OLL Ltd and Kite (1994), the company was convicted of corporate manslaughter under the English criminal Law. (Aaron, 2006) 3. Reactive Corporate Fault This theory suggests that in the occurrence of health and safety negligence, the court has the authority to employ corporation to ensure appropriate measures are taken to prevent and avoid such recurrences in future and the corporation will face criminal prosecution in case they fail to do so. This was primarily identified in Fisse and BraithwaiteFisse of 1983. Fisse visualize a system in place where the corporation will be ordered to develop internal robust systems to prevent further occurrences within a certain period of time. Criminal liability will only be imposed if the company fails to take appropriate measures. (Legal Sutra, 2010) Hence the culpability is only when the company fails to react to the negligence caused by the employees and not at the time of the crime. The criminal law has been very rigorous and severe to corporate entities. In case of criminal actions and acts of employees and agents, the companies are liable both under the Federal and State laws. The main advantage of this doctrine is that the court understands that one of the main aims of corporate liability is to make certain that the organization understands and provides an opportunity to change the companies’ defective policies and procedures to prevent it from recurrence. It also ensures that companies conduct the enquiries rather than the state as it not only saves time and money but also the company will best provide an understanding of its own structures. (Clarkson, 1998) This doctrine focuses on post accident measures rather than focusing on the health and safety standards which was not met in the first place before the accident. The Law Commission (UK) also mentioned that reforming health and safety norms would not be effective in prosecuting the organizations who had failed to have the safety norms in the first place. Holding the company liable for criminal acts and negligence cannot be effective due to the political interferences. (Aaron, 2006) 4. Vicarious Liability This concept states that if there is a discharge of responsibility entrusted on another person, the employer becomes liable for the negligence on the part of the employee. There is an automatic liability that is created where one employee is held liable for another employee’s misconduct or negligence. Criminal liability is imposed on the employer if the employee commits any offence which is within the scope of his employment. Under this doctrine, if an employee acting within the range of his employment and an intention to benefit the company, commits a crime. Irrespective of the fact if it benefited the company, there is a liability imputed to the company automatically. This doctrine is well established under the UK law with regards to strict offence dealing with water pollution, food, drugs and safety of employees at work. It prevents companies from delegating illegal operations to employees and shielding themselves against criminal liability. (Clarkson, 1998) This doctrine has 3 important roles in different jurisdictions Even for the Men’s rea offence, vicarious liability is considered to be a general principle for corporate liability in some jurisdictions. In some countries, vicarious liability is imposed on all employers for the acts of the employees. In some other countries like Australia, there are laws that explicitly focus on vicarious liability for the acts of the employees and agents. (Peter, 2002) In the R. V Stevanovich case, the owners of a restaurant were convicted for violation of the liquor license act although there was ample evidence that both the parties were not present at the time the violation happened. They were held liable as an act of omission of their subordinates. (Legal Sutra, 2010) A clear case of vicarious liability is in Atkin J in Mousell Brothers V London and North Western Railway Company. It had stated that the principal is not made criminally responsible for the acts of its servants but the legislature prohibits an act or a duty in which case the principal will be held liable for those acts done by its servants. In the Mousell case, the company was charged and vicariously liable for an offence committed by its employees although the definition of the offence required being committed “with intent”. (Peter, 2001) In another case National Rivers Authority V Alfred McAlphine Homes East Ltd (1994), the site agent and the site supervisor employed by the company was charged for water pollution to enter the controlled waters. Both the employees responsible on site were employees of the organization and acting within the scope of the employment. Hence, the company was vicariously liable for the employee’s offence and breach of law for the acts of the employee which were carried out within the scope and normal course of his employment. (Criminal liability of the company, n.d) There are usually 2 ways the company will be held liable for the acts of its employees and they are- Process of Extensive construction- if the act or activity of an employee is also an act of another employer. Doctrine of Delegation- When the employer delegates his activity to an employee In another case of Negara Traders Ltd V Pesuruh Jaya Ibu Kota, Kuala Lumpur, The plaintiff had been dealing with buying and selling of gold with the defendant’s office messenger. The orders were provided in the official letter pad of the defendants company which was duly signed and stamped. But the orders were forged and the plaintiff charged the defendant company for forgery. The defendant proved that the office messenger did not have the authority to transact the orders. The court dismissed the claims of the plaintiff as it was a case of forgery and the defendant company was not vicariously liable to the plaintiff. (Criminal liability of the company, n.d) In another case, the managing director along with the workers were sentenced to 12 months of imprisonment as they were charged for manslaughter following a death of an employee who was caught in a unguarded machinery in the factory. The company also was imposed a substantial fine for the negligence. 5. Management Failure Model This doctrine came into effect in April 2008 in the UK under the corporate manslaughter and Corporate Homicide Act 2007 and this law states that the criminal charges of the organization were due to serious failures in the management. The law commission changed from identification doctrine to management failure model to ease the burden of proof for big companies. This is the first time that the companies are found guilty due to the negligence of senior management and the leadership team; many companies are charged and found guilty of corporate manslaughter resulting in breach of care. (Greg, n.d) The law also clearly states that if there is a clear failure at the senior leadership level, the companies are liable and prosecuted for the death of its employees under corporate manslaughter. In accessing if there is a” gross failure” the law must consider if the company has complied with health and safety regulations. If the company has not acted in accordance with the norms, then the court must consider the following: The seriousness of the issue The extremity of risk that has resulted in the non-compliance. If the firms are found guilty of non-compliance, the court has the authority to fine unlimited against the organization under the corporate manslaughter act. In 2005, Transco was prosecuted and found guilty under the corporate manslaughter Act and was fined 15 million GBP and the fine was based on 10% of the annual turnover of the company. Transco had breached the safety and regulatory norms which led to the deaths of 4 members in gas explosion in 2005. The fine is the highest and largest fine imposed in the UK to date. Balfour Betty was charged for breach of safety norms and was fined a total of 7.5 million GBP over the Hatfield derailment. Network rail was also charged 3.5 million GBP for the Hatfield derailment which killed 4 people on the site. (McCormack Benson Health & Safety, n.d) The company and its managers were fined for 2, 45,000 GBP at crown court with respect to the removal of asbestos sheet. The company had engaged temporary staff who were not well equipped or warned regarding the risks of it. 6. Corporate Mens Rea Doctrine This approach is widely used in the US and Australia and prominently used in the UK. The basic idea of this doctrine is to completely ignore the realities of the complex structure and the dynamics of the organization, people, employees, structure which all contribute to the philosophy. Mens rea is a general requirement of criminal law and there is a need to establish more with the increase in seriousness. The law states that “the act does not make a person guilty unless the mind is also guilty”. Guilty mind distinguishes between accidental and intentional acts even if the end result had caused a person’s death. In the case of Adams RV V Devlin J, the doctor gave his patient large amount of morphia to reduce the patient’s pain which resulted in death of his patient. The doctor was not guilty of murder although the measures he took accidentally shortened the life of the patient. In another case of Attorney General of Northern Ireland V Gallagher (1961), Intoxication cannot be a defense if there are clear intentions. In this case, the defendant had drunk whiskey to get the courage to murder his wife. There had been a clear intention of killing before getting intoxicated and the person was guilty of murder. (Sixth Form Law, n.d) In another case of RV Lawrence (1981) AC 510, the defendant’s motor cycle had collided and killed a pedestrian. The defendant was charged with reckless driving which had caused the death of the pedestrian. In another case of R V Nedrick (1986) the defendant had admitted in setting the house on fire with the petrol bomb which had resulted in the death of a child inside the house. The intent of the defendant of starting the fire was to frighten the owner of the house. The court had charged a case of manslaughter and not murder conviction. (Cases on Mens Rea, n.d) In Lipman R V (1869) the defendant was charged for manslaughter. In this case the defendant and his girlfriend were under the influence of a hallucinatory drug. The defendant imagined him being attacked by snakes and in the act of defending himself killed his girlfriend. He was acquitted for murder but convicted for manslaughter. (Cases on Mens Rea, n.d) Workplace safety and role of Human resources The organization should be aligned to international safety standards and management system. All the organizations should integrate and incorporate environmental, occupation safety and regulation, and loss prevention. The human resource department plays a very important and vital role in ensuring safety of its employees. The human resource management team is not expected to know the technicalities of workplace health and safety procedures but they are expected to know the policies and procedures. Health and Safety is a department within human resources in many companies these days and it is very important for the human resource team to understand- The health and safety responsibilities of managers, employees, top management of the company Implement the policies and procedures to ensure the employees are protected Ensure the employees are aware of the policies through organizational programs. The role of the human resource team should have a health and safety program clearly defined and stated. Some of the areas that human resources should examine and supervise are- Management and employee training on health and Safety measures to prevent work related injuries and illnesses. Ensuring work place safety culture is being driven to ensure safety of the employees working onsite. Frequent scheduled workplace inspection to be done to ensure safety. Encourage employees to report any incidents or unsafe working conditions to the human resource department Organizational rules and regulations to be reviewed and updated every 6 months. Ensure that policies and procedures laid by the company are within the applicable health and safety legislation and are accepted ‘best practices’ within the organization. Personal protective equipment to be used in case of emergencies Group meetings with the employees regarding occupational health and safety HR department to maintain records of injuries, illness and workers compensation disability and are responsible to reduce costs associated with injuries and illnesses. Evaluation and continuous improvement (Canadian Center for Occupational Health and Safety, n.d) Conclusion: Having an effective Health and Safety department has become very important from a commercial and a governmental view point of the company. Many high profile safety negligence cases over the last few years have been mostly caused by bad management team in the company. The leadership team should provide directions for effective health and safety management which will safeguard and protect the safety of its employees. Literary References: Aaron Sweet (2006) Making a killing- A Separate Corporate Manslaughter Offence for New Zealand? Bachelor of Law , University of Otago, Dunedin A Managers Responsibility and Liability in Health and Safety (2008) available at  http://www2.glos.ac.uk/offload/departments/personnel/hse/hshbk/6.1.doc. [Accessed 16th April 2011] Clarkson C.M.V,1998, Corporate Culpability, 1st ed London, Blackstone Press Ltd Canadian Center for Occupational Health and Safety, Health and Safety Guide for Human Resource Professionals, [online] available at http://www.ccohs.ca/products/publications/pdf/samples/humanResources.pdf [accessed 14th April 2011] Criminal liability of the company [online] available at http://www.scribd.com/doc/38335733/Criminal-Liability-of-Company [ accessed 16th April 2011] Cases on Mens Rea [online] available at http://www.lawteacher.net/criminal-law/cases/mens-rea-cases.php [ accessed 16th April 2011] Corporate Manslaughter, available at http://corporate-manslaughter.co.tv/ [ accessed 11th April 2011] Corporate Criminal Liability- Doctrine of Identification (2011) available at http://jurisonline.in/2011/01/corporate-criminal-liability-doctrine-of-identification/ [ accessed 14th April 2011] Greg Davies, Elementus, Gross Negligence or Corporate Manslaughter, [blog] 4th March 2011, available at http://www.elementus.com/blog/entry/gross_negligence_or_corporate_manslaughter/ [accessed 16th April 2011] Health safety executive, Agenda for effective leadership of health and safety, NSE publication, [online] retrieved 16th April 2011, available at http://www.hse.gov.uk/pubns/indg417.pdf, [accessed 16th April 2011] Legal Sutra (2010) Corporate Criminal Liability available at http://legalsutra.org/1017/corporate-criminal-liability/ [accessed 15th April 2011] McCormack Benson Health & Safety, Corporate Manslaughter Act and Corporate Homicide Act,[online] available at http://www.mb-hs.com/corporate-manslaughter-act.htm [ accessed 15th April 2011] Peter Leyland (2002), Corporate Manslaughter-where should the blame lie? Vol XVI pp105-122 Preeti Sharma (2010) Corporate Criminal Liability and Corruption [online] available at http://jurisonline.in/2010/10/corporate-criminal-liability-and-corruption/ [accessed 14th April 2011] Peter Cartwright (2001) consumer protection and the criminal Law- Law, theory and Policy of the UK, Cambridge, Press Syndicate of the university of Cambridge Sixth Form Law, Cases- Murder –Mens Rea [online] available at http://sixthformlaw.info/02_cases/mod3a/cases_32_murder_mens.htm [accessed 16th April 2011] Safe workers (2010) Corporate Manslaughter, available http://www.safeworkers.co.uk/CorporateManslaughter.html [accessed 15th April 2011] Wikipedia (2010), human resource management [online] retrieved 16th April 2011, available at http://en.wikipedia.org/wiki/Human_resource_management [accessed 16th April 2011] Wikipedia (2010) Health and Safety Laws [Online] retrieved 15th April 2011, available at http://en.wikipedia.org/wiki/Health_and_safety_law [accessed 15th April 2011] Wikipedia (2011), Corporate Liability [online] available at http://en.wikipedia.org/wiki/Corporate_liability [accessed 16th April 2011] Read More