The new corporate manslaughter law shouldn’t be a problem if you comply with the Health and Safety at Work Act. But do take time to review your business procedures. Ross Bentley reports
When the much-publicised Corporate Manslaughter and Corporate Homicide Act 2007 came into force on April 6 it created a new offence called corporate manslaughter (or corporate homicide in Scotland).
It is a turning point for campaigners who have fought for decades to make the upper echelons of corporations and organisations accountable for health and safety failures.
A major impetus for the passing of the law was travel-related, as Institution of Occupational Safety and Health policy and technical director Richard Jones explained. “There was a lot of public disquiet following the Zeebrugge disaster in 1987, in which 193 people died when the cross-channel ferry Herald of Free Enterprise capsized after leaving port with its bow doors open. The investigation found problems of safety culture and management.”
Sadly, Zeebrugge was just one of a long line of tragedies that campaigners and families of the victims have argued could have been prevented if the people at the top of the companies involved had been made accountable.
The problem was that attempts to prosecute large corporations for gross negligence, manslaughter or culpable homicide repeatedly hit a brick wall because the law required proof that a ‘directing mind’ (an individual at the top of the organisation who can be said to embody its decisions or actions) was guilty of the offence.
With the passing of the new act, a variant of this offence has been created. It is specific to organisations, and means criminal liability can be attributed to way their activities are managed by their senior managers if they grossly fail in their duty of care to a person, and that failure results in the person’s death. Not only are employees covered by this duty of care, but also customers and other members of the public too.
No individual can be prosecuted under the act as it is directed solely at organisations and companies whose conduct has been found to have ‘fallen far below what could reasonably be expected in the circumstances’. But it does give individuals a strong incentive to ensure the right policies and practices are in place.
According to Kevin Elliott, a partner at international law firm Eversheds, organisations found culpable are likely to face large financial penalties as fines are unlimited under the new law.
Guilty organisations will be ordered to ensure they put in place adequate safety systems and procedures. And they may well face a publicity order requiring them to make public what went wrong and what is being done to resolve the situation.
“This could mean organisations having to take an advert out in a national newspaper or trade journal. There’s an element of name and shame about this and culpable organisations may experience huge damage to their brand and reputation,” warned Elliott.
Although the latest figures from the Health and Safety Executive (.pdf) show 241 workers were fatally injured in the workplace during 2006/07, it is predicted that only a handful of organisations found to be guilty of the most severe lapses in duty of care will be likely to face prosecution under the new act each year.
This comes from an impact assessment carried out by the Home Office in 2006, where it was estimated the proposed law would lead to a possible 10 – 13 extra prosecutions annually.
However, Justin Eade, a partner at commercial law firm ASB Law said the arrival of this new law should spur employers to revisit their health and safety procedures and ensure there are no gaps.
He said: “Organisations should be creating a culture of safety – they should regularly audit safety management systems, carry out adequate risk assessments, have a health and safety director sit on the board and record all health and safety measures implemented.”
The key is compliance with the Health and Safety at work Act and its related regulations, said Ben Wilmott employee relations adviser at the Chartered Institute of Personnel and Development. “As long as companies focus on health and safety in the way they already should, the new Act should hold no fear.”
Corporate Manslaughter and Corporate Homicide Act 2007
- Assess your organisational structure to determine who could be considered a ‘senior manager’ – these individuals should be appropriately trained and competent for their role.
- Provide update training for senior managers on their health and safety responsibilities.
- Check your insurance cover includes legal protection in the event of criminal charges for corporate manslaughter.
- Review all health and safety policies to ensure that statements made and standards set are achievable and do not exceed legal obligations, unless there are good reasons.
- Review your health and safety culture to promote a safer environment for your employees and, where relevant, the public.
- Revisit your disaster management plan and ensure there is a protocol for dealing with the authorities and working with legal advisers when a fatality occurs.
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