Corporate Manslaughter: Half a million reasons to take actionJune 3, 2012
The Corporate Manslaughter and Corporate Homicide Act came into force on 6 April 2008 and created a new offence called corporate manslaughter in England, Wales and Northern Ireland, and corporate homicide in Scotland. Whilst to date there have only been three convictions the recent high profile conviction of Lion Steel where they received a fine of just under half a million pounds highlights the importance of ensuring the health and safety of your workers.
Your business can be prosecuted for the offence of corporate manslaughter if the way in which its activities are managed or organised by senior management causes a death and this constitutes a gross breach of a duty of care to the deceased. A substantial part of the breach must have been in the way activities were managed or organised by senior management.
Owners and senior managers of businesses cannot be personally prosecuted for corporate manslaughter, however, they can be personally prosecuted for other offences related to failures in health and safety management. These include: gross negligence; manslaughter and health and safety offences. The corporate manslaughter legislation does not change this.
Prosecutions against individuals will continue to be taken where there is sufficient evidence and it is in the public interest to do so. Indeed, it is likely that a prosecution will be brought for corporate manslaughter against a company in tandem with prosecutions against individual directors or senior management for personal liability.
Penalties for Corporate Manslaughter include unlimited fines, remedial orders and publicity orders. A remedial order will require a company or organisation to take steps to remedy any management failure that led to a death. The court can also impose an order requiring the company or organisation to publicise that it has been convicted of the offence, giving the details, the amount of any fine imposed and the terms of any remedial order made.
The Sentencing Guidelines Council published guidance in 2010 suggesting that for corporate manslaughter the appropriate fine will seldom be less than £500,000 and may be measured in millions of pounds.
For this reason, all businesses must carefully examine their health and safety training, policies and provision to ensure that the highest standards are met to avoid potential corporate manslaughter charges and to ensure that senior management do not face personal liability.
The Corporate Manslaughter Test
Juries will consider how activities that led to the fatal accident were managed or organised throughout your business, including any systems and processes for managing health and safety, how these were operated in practice and the failures that occurred.
A substantial part of the failure must have been at senior level, ie the people in your business who make significant decisions about it or substantial parts of it. This includes both centralised, headquarters functions as well as those in operational management roles.
To be in ‘gross’ breach of a duty of care, your business’ conduct must have fallen far below what could have been reasonably expected in the circumstances’. Juries will also take into account any health and safety breaches by the organisation – and how serious and dangerous those failures were.
A possible defence will be where the business can show that it had taken all reasonable steps and precautions to prevent an accident.
Duty of Care
Your business has duties of care that it should meet, for example in respect of:
the systems of work and equipment used by employees
the condition of worksites and other premises occupied by your business
products or services supplied to customers
The corporate manslaughter legislation does not create new duties – they are already owed in the civil law of negligence and in health and safety law, and the offence is based on these.
Some of these duties of care will be particularly complex where employees work from home or are lone workers. It will be difficult to monitor compliance with Health and Safety policies or to be aware of potentially dangerous situations. It is essential that businesses with lone workers obtain professional
advice and guidance in respect of the health and safety requirements of lone workers.
Complying With the Legislation: Lone Workers
All employers must already comply with health and safety legislation and the Corporate Manslaughter Act does not affect those requirements. However, the introduction of the criminal offence of corporate manslaughter should encourage you to ensure that your systems and processes for managing health and safety are adequate.
You should make sure that your business has senior management that lead and seek to manage health and safety effectively.
Employers have responsibility for the health, safety and welfare at work of all of their employees. They are also responsible for the health and safety of those affected by work activities, for example any self-employed people they engage and visitors such as contractors.
These responsibilities cannot be transferred to any other person, including those people who work alone. It is the employer’s duty to assess risks to lone workers and take steps to avoid or control risks where necessary.
Companies and organisations that take their obligations under health and safety law seriously are not likely to be in breach of the new provisions. Nonetheless, companies and organisations must keep their health and safety management systems under review, in particular, the way in which their activities are managed or organised by senior management.
Employers of lone workers should:
involve staff or their representatives when undertaking the required risk assessment process;
take steps to check control measures are in place (examples of control
measures include instruction, training, supervision and issuing protective equipment);
review risk assessments annually or, as few workplaces stay the same, when there has been a significant change in working practice;
when a risk assessment shows it is not possible for the work to be conducted safely by a lone worker, address that risk by, for example, making arrangements to provide help or back-up – this may be as simple as providing an emergency alarm, telephone check in service or ; and
where a lone worker is working at another employer’s workplace, that employer should inform the lone worker’s employer of any risks and the required control measures. Risk assessment should help employers decide on the right level of supervision. Procedures must be put in place to monitor lone workers to help keep them healthy and safe. The Health and Safety Executive recommends that such procedures may include:
supervisors periodically visiting and observing people working alone;
regular contact between the lone worker and supervisor, using either mobile phones, telephones, radios or e-mail, bearing in mind the worker’s understanding of English;
automatic warning devices which operate if specific signals are not received periodically from the lone worker, e.g. staff security systems;
other devices designed to raise the alarm in an emergency, these can be operated manually or automatically by the absence of activity;
checks to ensure a lone worker has returned to their base or home once their task is completed
For further advice and information on compliance with Health and Safety Legislation contact Maria O’Loan, Director, Cleaver Fulton Rankin, firstname.lastname@example.org.
Please note: The content of this article is for information purposes only and further advice should be sought from a professional advisor before any action is taken.
Cleaver Fulton Rankin, 50 Bedford Street, Belfast, BT2 7FW
T: 028 9024 3141, Fax: 028 9024 9096, www.cfrlaw.co.uk
A legal alliance Matheson Ormsby Prentice, Dublin & Cleaver Fulton Rankin, Belfast