Health and Safetyby Pete Fisher
The Corporate Manslaughter and Corporate Homicide Act 2007 came into force on 6 April 2008. The Act clarifies the criminal liabilities of companies (including large organisations) where serious failures in health and safety management result in a fatality i.e. they can be found guilty of corporate manslaughter as a result of serious management failures resulting in a gross breach of a duty of care.
Any prosecutions will be of the corporate body and not individuals, however, the liability of directors, board members or other individuals under criminal law is not affected. It is important to note that the corporate body itself as well as individuals can still be prosecuted for separate health and safety offences.
The Act also largely removes the Crown immunity that applied to the previous common law corporate manslaughter offence.
Under the Act, health and safety legislation is defined as 'any statutory provision dealing with health and safety matters' and therefore applies to any work activity or workplace where health and safety is enforced by the HSE and Local Authorities.
A 'senior manager' is defined as someone who plays a significant role either in the making of decisions about how the organisation's activities are managed or in the actual management of those activities.
A breach of a duty of care will be 'gross' if the conduct which led to it fell below what could reasonably be expected of the organisation in the circumstances.
If a prosecution is brought to court the jury will be required to consider breaches of health and safety legislation in determining liability of companies and other corporate bodies for corporate manslaughter or homicide. Juries may also consider whether the defendant has taken account of any appropriate health and safety guidance and the extent to which the evidence shows that there were attitudes, policies, systems or accepted practices within the organisation that were likely to have encouraged or tolerated any serious management failures.
Companies and organisations that take their obligations under health and safety law seriously are not likely to be in breach of the provisions.
Companies and their employees must do everything reasonably practicable to ensure the health, safety and welfare of everyone affected by their activities. In particular, appropriate safety management systems should be set up and followed, with adequate training, supervision, monitoring and auditing. All other appropriate documentation and procedures should be in place to ensure compliance with all applicable law, such as risk assessments, method statements and permits to work. Health and safety should be a boardroom issue and the HSE recommends the appointment of a ‘health and safety director’ at board level.
Health and safety management systems must be kept under review to take account of any changes in operations or locations. In particular, the way in which activities are managed or organised by senior management should be subject to continuous review and improvement.
Can directors or individuals be prosecuted?
The Act is concerned with corporate liability and does not apply to directors or other individuals who have a senior role. However, existing health and safety offences and gross negligence manslaughter does apply to individuals and prosecutions against individuals can still be taken by the enforcing authorities where there is sufficient evidence.
The Institute of Directors and the HSE has published guidance for directors on their responsibilities for health and safety and how to provide leadership in health and safety in order to help their organisation meet its legal obligations. The guide can be down-loaded from their web site at www.hse.gov.uk/pubns/indg417.pdf
Enforcement and penalties
Any suspected cases of corporate manslaughter or homicide will initially be investigated by the Police who may work jointly with the HSE. A decision on whether or not to prosecute will be made by the Crown Prosecution Service in England and Wales, the Crown Office and Procurator Fiscal Service in Scotland or the Director of Public Prosecutions in Northern Ireland.
Penalties as a result of a successful prosecution 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 which will include details of the case, the amount of any fine imposed and the terms of any remedial order made.