The New Legislation
The Corporate Manslaughter and Corporate Homicide Act ("the Act") came into force on 6 April 2008, creating a new offence of corporate manslaughter.
This means that, for the first time, companies and organisations can be convicted, where serious management failures lead to a gross breach of their duty of care towards an employee and ultimately results in that person's death.
An organisation can be charged with the offence of corporate manslaughter if the way in which its activities are managed or organised:-
- Causes a person's death;
- Amounts to a gross breach of the duty of care owed to that person by the organisation.
To constitute a gross breach of duty, the organisation's conduct must have fallen far below that which could have reasonably been expected in the circumstances. This will be a matter for a jury to decide.
An organisation guilty of an offence may be liable for an unlimited fine. There is the power under the Act for the court to impose a publicity order, which requires the organisation to publicise details of its conviction and fine. There is also the possibility of the court making a remedial order which will require the organisation to take steps to address the failures which caused the death. These provisions are expected later in 2008, when sentencing guidelines will be introduced.
The Act therefore shifts the focus from individual responsibility to that of senior management. Senior management includes those people who play significant roles in decision-making and the actual management of the organisation.
Due to this new legislation, it will no longer be necessary to establish a cause of action against an individual within the organisation to establish corporate manslaughter. However, individual members of the organisation can still be prosecuted, as before, if found guilty of gross negligence, manslaughter and other health and safety offences.
What this means for Employers
The Act does not actually create any new obligations for employers. However, in light of the serious new offence which the Act introduces, employers and senior management personnel should review their health and safety policies and procedures. Employers should ensure that there are sufficient procedures in place, and that responsibility for health and safety management has been clearly defined. The health and safety procedures should be regularly reviewed and senior management should play a pro-active role in health and safety strategies. The important point for employers to note is that they should not merely be complying with health and safety procedures, but actively ensuring implementation through review and improvement.
Because the Act has only just come into force, there are no established precedents or guidelines on what will constitute a gross breach of duty, and how an organisation could mitigate the prospects of a successful conviction for corporate manslaughter. However, demonstration of effective health and safety procedures and an awareness of risk within the workplace will be an organisation's best defence against any potential conviction.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.