The Corporate Manslaughter and Corporate Homicide Act 2007 received Royal Assent in July and came into force on 6 April 2008. The legislation is intended to provide a new approach to punishment in circumstances where a work related death has occurred irrespective of whether it is the death of an employee or a member of the public.
The UK has the lowest level of workplace and work related fatalities in Europe. However, there has been concern and debate about the small number of prosecutions for manslaughter, the percentage that go to court and that the majority fail to succeed. Prosecutions of larger firms generally fail, the few successful prosecutions have been against small firms, SMEs.
The Historic Position
Following a work related death a number of enforcement options are available to the Health and Safety Executive (and Local Authorities)
• Prosecution under Health and Safety at Work Act
- Sec2: Company - for employee deaths
- Sec3: Company - for deaths of persons who are not employees
- Sec7: Individuals, for personal failure
- Sec37: Senior persons
• Prosecution for manslaughter of both the "directing mind" and the company
The courts have determined that corporate bodies, such as companies cannot be prosecuted for manslaughter. In order for a company to be successfully prosecuted for manslaughter it is necessary to identify a senior person within the organisation, the controlling or directing mind and to successfully prosecute them for manslaughter. Only when the directing mind has been found guilty can the company be found guilty.
It has generally proved relatively easy to identify the controlling or directing mind of smaller organisations. However, in larger organisations such as large plcs, it has been difficult, if not impossible to establish a close connection between senior members of management and the activities that resulted in the death. Thus, the manslaughter prosecution generally fails.
In contrast, in smaller firms, the managing director or equivalent is usually much more closely involved in the day to day running of the business and thus can be successfully prosecuted for manslaughter allowing prosecution of the company.
The New Position
The new Act serves to remove this apparent inequality and ease the task of prosecution following a workplace death or fatality. This should mean that larger companies could, in the future, face a greater risk of prosecution.
Who is covered by the Act?
A wide range of organisations and corporate bodies are covered by the Act and could face prosecution following a workplace or work related fatality, including:
• Some Crown bodies, the Police Force etc
• Companies within large groups are regarded as separate entities - parent company would not necessarily be prosecuted for failures of their subsidiary companies that have resulted in a fatality.
Note: The new Act does not provide for the prosecution of individuals although they could still be charged with health and safety offences and manslaughter - just as at present. It is also not possible to charge an individual with "assisting or encouraging" in the new offence.
Key Action Steps
• The Act does not impose any new responsibilities upon employers and others who may be involved with workplace fatalities
• The Act does not, in any material way increase the available penalties
• In order to reduce the chance of being prosecuted for corporate manslaughter and organisation should ensure that all existing legislative requirements are identified and satisfied
The duty of care
The main offence under the Act is concerned with a breach of the "duty of care" which arises from
• Employing people
• Supplying goods and services
• Ownership and control of premises
• Undertaking any commercial activity including construction and maintenance work.
• Using or keeping vehicles, plant and dangerous substances.
The basis for conviction
An organisation will render itself liable for conviction if the way in which it manages and controls its activities falls far below the standard expected. This is essentially a test of "gross negligence". In order to determine this, the courts will consider what legislation applied, what industry or trade guidance and best practice information was available and should have been followed.
The court will also consider whether a member of senior management has caused or contributed to the cause of a fatal accident through their negligence. Although a precise definition of the term senior management is not given the guidance states they would be someone who has responsibility for and control over a large or substantial part of the organisation.
Exactly who would be regarded as senior management depends upon the nature of the organisation and how it organises its activities. Guidance from the Ministry of Justice states that it would include not only those in central or "headquarters" functions e.g. Finance Director but also those with senior operational responsibility e.g. Works Manager, Maintenance Manager or equivalent.
There are a number of other parts of the Act that should be noted:
•The Act applies across the United Kingson - England, Wales, Northern Ireland and Scotland
•The Act can not be used to prosecute following work related deaths outside the United Kingdom
•Crown immunity is reduced
•Deaths in custody - these can not be prosecuted at present - there is a 3-5 year lead in period
The new Act sets out a number of penalties that may be used following a successful prosecution.
• Fines: The Act allows for unlimited fines
Note: This aspect is no different to the position under existing legislation which allows for unlimited fines for more major cases and/or those health and safety prosecutions taken in the higher courts.
Sentencing guidelines have been issued. These initially proposed a rising scale of finest hat started at 2.5% of turnover rising to 105. These have now been replaced by a "flat fine" approach that proposes a minimum fine of £500,000
• Remedial Orders: The company may, if found guilty, receive a remedial order requiring them to make good the situation/workplace within a specified period.
Note: This is equivalent to the existing sanction of Improvement and Prohibition Notices.
• Publicity Order: The court may require the company to publicise the circumstances of the accident that resulted in the workplace fatality, the particulars of the offence, the fines etc.
Note: This provision will not be available until guidance has been prepared. The potential negative effect of reputational damage could be significant, especially for larger organisations with a high profile image or brand.
The Likely Effect
The Health and Safety Executive prepared a Regulatory Impact Assessment (RIA) at the time when the Act was drafted. In the RIA the HSE estimated the likely impact of the proposed legislation - it was stated that the increase in prosecutions would be of the order of 10-12 prosecutions over the course of a year.
There is one prosecution in progress although it is believed that others may be under consideration. A case concerning a death following the collapse of an unsupported trench is due to be heard in early 2010.
Guidance from the Ministry of Justice. October 2007 www.justice.gov.uk/docs/guidetomanslaughterhomicide07.pdf
HSE Guidance: www.hse.gov.uk/corpmanslaughter/index.htm