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Employers already owe a duty of care to their employees and members of the general public with regard to the premises they occupy and the activities they carry out.
However, the Corporate Manslaughter and Corporate Homicide Act, which came into force on 6 April 2008, establishes a new statutory offence of corporate manslaughter. In the light of this new legislation, it is now more important than ever for businesses to review their policies and procedures, particularly those that relate to health and safety.
The new offence
An organisation is guilty of the offence if the way in which it manages or organises its activities causes a death and amounts to a gross breach of a relevant duty of care to the deceased. A substantial part of the breach must have been in the way activities were managed by the senior management of the organisation.
Before the new Act came into force, an organisation could only be convicted of manslaughter if a ‘directing mind’ – i.e. a senior manager or director – was also personally liable. However, this did not reflect the reality of the way decisions are made in large organisations and there were very few prosecutions as a result. To illustrate this, Crown Prosecution Service Figures state that in 2006-07 alone, 241 people were injured fatally at work. Since 1992 there have been 34 prosecutions and a mere 6 convictions under the old law. The new law is expected to lead to a dramatic rise in the number of corporate manslaughter cases against businesses of all sizes.
The new offence is concerned with the corporate liability of the organisation itself, allowing this to be assessed on a wider basis and providing greater accountability for serious management failings across the organisation. It will continue to be possible to bring prosecutions for gross negligence manslaughter against individuals, where there is sufficient evidence and it is in the public interest to do so.
When determining whether an organisation is guilty of the new offence of corporate manslaughter, the courts will look at management systems and practices across the organisation and whether an adequate standard of care was applied to the fatal activity. Juries will be required to consider the extent to which an organisation was in breach of its health and safety requirements and how serious those failings were. They consider the wider culture that exists within an organisation regarding health and safety issues. Lax management attitudes, systems or accepted practices within the organisation that are likely to result in a lower standard of care than could reasonably be expected will be punished.
What are the penalties?
An organisation convicted of the new offence may face the following penalties:
- an unlimited fine;
- a publicity order requiring an organisation to publicise its conviction and certain details of the offence; and
- a remedial order requiring the organisation to address the cause of the fatal injury.
Whilst individuals cannot be jailed, unlimited fines can potentially be crippling for an organisation. In a recent consultation document on sentencing for corporate manslaughter, the Sentencing Advisory Panel has stated that fines could be between 2.5% to 10% of average annual turnover, or even more if there are significant aggravating factors. Publicity orders are also likely to have a significant effect on a businesses recruitment, customers and reputation.
What should employers be doing to comply?
The introduction of the new Act should act as a wake up call to all employers, to review all of their policies and procedures, especially those with direct health and safety implications. This includes disciplinary, grievance and whistle-blowing procedures.
Simply having the policies and procedures in place will not be sufficient to successfully defend a charge of corporate manslaughter.
You will have to show that you actively take a responsible attitude to health and safety, by enforcing the procedures consistently and rigorously and keeping policies and procedures regularly under review.
Think of ways to strengthen the health and safety culture within your business. You should ensure that health and safety is taken seriously at Board level and may even consider appointing a Health and Safety director, or forming a Committee. You may even consider commissioning an independent audit and review of safety management systems and compliance within your business. We would also advise that you check your liability insurance policies to ensure that claims under the new Act are covered.