Killing time

For more than a decade, successive governments have faced continued criticism that the existing health and safety laws, and the common law offence of corporate manslaughter, is wholly inadequate to deal with the most serious of tragedies, including those occurring in the workplace.

Under existing common law, to punish an organisation appropriately, the prosecution has to prove beyond reasonable doubt ‘gross negligence’ manslaughter by an individual who is part of the ‘directing mind’ of the organisation that caused or contributed to the death.

This has proved to be an almost insurmountable task, particularly with large organisations where, in reality, there is no one individual who could properly be considered part of the ‘directing mind’ of that body and who is also individually guilty of ‘gross negligence’ manslaughter.

The new offence of ‘corporate manslaughter’ (or ‘corporate homicide’ in Scotland), however, will be committed if the way in which a business’s senior managers organise or manage activities causes a person’s death, and this amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.

The shift of focus from the ‘directing mind’ to senior managers in the new offence is considered to make it easier to obtain successful convictions for corporate manslaughter where in the past it has been almost impossible when the organisation has been larger than a small business.

When does it start?

The new Corporate Manslaughter and Corporate Homicide Act 2007 comes into force on 6 April. All businesses must ensure that before that date they are satisfied their health and safety management systems will stand up to the inevitable scrutiny of the new legislation if the worst happens.

How will it affect me?

The law will affect almost all businesses, including partnerships, trade unions and employers’ associations that are employers.

It aims to make the corporate identity accountable for manslaughter, but does not change the accountability for individual directors or senior managers. Consequently, only the organisation itself can commit an offence under the new legislation.

But be warned: this does not mean that individuals are exempt from prosecution for manslaughter. Individuals, including directors and senior managers, can still commit an offence of ‘gross negligence’ manslaughter under common law.

The ingredients of the new corporate manslaughter offence focus on the acts or omissions of senior managers, so it seems logical they will be the centre point of any manslaughter investigation by the police.

Will I have new obligations?

There are no new obligations imposed on businesses under the act. A duty of care will be owed by an organisation to the deceased under the same circumstances as is already owed under the law of negligence (an exhaustive list of those circumstances are provided in the Act).

For example, existing health and safety law already imposes obligations on all employers, ‘so far as is reasonably practicable’, to ensure the health and safety of their employees and those not in their employment who may be affected by them.

Most importantly, the act is intended to allow prosecutions for the offence of corporate manslaughter to be brought more easily than under the existing common law.

What is it going to cost me?

Some might say that if your business is already operating within the law under the current health and safety legislation, it should not cost you anything.

Smaller businesses may be at a higher risk of prosecution as there is a shorter chain of command and senior managers are more readily identifiable.

However, how many businesses can honestly state, and be absolutely sure, that their safety management systems and the implementation of them from board level down to shop floor, are completely compliant with current legislation? Not many, if they are being honest.

A realistic and much wiser approach would be for organisations to prepare themselves for the new law by undertaking a complete and thorough review of their safety management systems and of how these are implemented to ensure their firm meets its health and safety obligations.

This will necessarily incur costs, but these costs are likely to be a fraction of any potential penalty if found guilty of corporate manslaughter.

What do I have to do?

A review of a business’ health and safety management systems against current industry standards and guidance will identify whether there is more to be done.

It would be wise to identify where your business’ particular risk areas are to ensure sufficient attention is paid to eliminating or minimising those risks effectively.

Often, businesses do not have the expertise or resources to conduct their own review. Here, it would make sense to hire appropriately qualified consultants to carry out the review, deliver their findings and advise on implementing recommendations.

As a small business, am I exempt?

There is no exemption for a small business. If your business is incorporated or a partnership, or a trade union or employers’ association – in other words, an employer – you will be caught by the Act. If your business is not one of these, remember individual liability for ‘gross negligence’ manslaughter under the common law will still attach to those within the business.

In fact, as is the position under the existing common law with corporate manslaughter, smaller businesses may be at a higher risk of prosecution because there is a shorter chain of command, senior managers are more readily identifiable and those managers tend to have wider remits and so more control over their section.

What happens if I do nothing?

Doing nothing is simply not an option. Remember, while the new Act does not provide for individuals to be prosecuted, the existing common law relating to individual manslaughter will remain in force.

Where the prosecuting authority believes individuals are at fault, they are likely to be prosecuted with the corporate defendant. Individuals can be imprisoned if they are found guilty of individual manslaughter.

What are the penalties?

Of course, companies cannot be sent to prison, so the penalty usually imposed is a financial one. However, sentencing in health and safety cases has always been a problem that courts have struggled with.

Under the Act, as in serious health and safety cases, the level of fine is unlimited. As a result, the Sentencing Guidelines Council has suggested that, on conviction for an offence of corporate manslaughter, the court should impose, as a starting point, a fine equal to 5% of the organisation’s annual turnover (with the option to go up to 10% or more if there are aggravating factors). This would, for most companies, represent a very large fine indeed.

In addition to a fine, courts can compel the organisation to ‘advertise’ their conviction in the local or national press, on the basis that a ‘name and shame’ culture may send a message to other businesses. It is easy to underestimate the potential damage to reputation that will inevitably result from one or more fatalities and the related health and safety offences, let alone from the stigma attached to convictions for corporate manslaughter.

Further, where a court is also of the opinion that the organisation still has not remedied their deficiencies (although it is likely the Health and Safety Executive would have dealt with any perceived deficiencies much earlier), the court can issue a remediation order forcing the company to remedy the breach, any matter resulting from the breach and relating to the cause of death, or any deficiency of which the breach is an indication.