Ashfords Solicitors - Corporate Manslaughter And Corporate Homicide Act:

The Act reinforces the importance of compliance with existing heath and safety laws and aims to make organisations take greater responsibility for their actions in respect of fatal accidents at work. The latest figures show that 77 of the 241 fatal accidents at work in 2006/ 07 occurred within the construction industry.

Under the current common law regime a company can only be prosecuted for manslaughter for gross negligence. In order to bring a prosecution a link must be established between a grossly negligent act by a person who was a "controlling mind" of the company (e.g. a director or senior manager) and the immediate cause of death, which is particularly difficult to achieve within a large company.

As a result of the "controlling mind" principle only seven companies have been convicted of corporate manslaughter. All of the companies were small companies, where the company's "controlling mind" could be identified and was closely linked to the incident in question.

The new statutory offence will replace the common law regime and will sit along side existing laws, primarily the Health and Safety at Work etc. Act 1974.

A company will be guilty of corporate manslaughter if a gross management or organisational failing causes a person's death and this test will apply to the failings of the company's senior managers, either individually or collectively. The gross management or organisational failing must also amount to a gross breach of a relevant duty of care owed by the company to the deceased.

For the purposes of the Act, a senior manager is someone who makes a significant contribution to the decision making process which determines how the company is managed or organised, or is someone who plays a significant role in the actual managing or organising of the whole or substantial part of those activities.

The Act sets out the relevant duties of care which must be breached before a prosecution can be brought, which include (amongst others) the duties owed to employees/ persons working for the company in respect of the carrying on by the company of any construction or maintenance operations; and in respect of the use or keeping of plant, vehicles or other things.

The Act sets out in detail the meaning of "construction or maintenance operations", which includes: construction, installation, alteration, extension, improvement, repair, maintenance, decoration, cleaning, demolition or dismantling of any building or structure, or anything else that forms part of the land, or any plant, vehicle or other thing.

Following the introduction of the Act it is estimated that an additional 5 corporate manslaughter cases per annum will be brought. While it is unlikely that all of the cases will result in prosecutions, the investigations themselves are likely to be extremely disruptive and costly to business.

If convicted of corporate manslaughter the penalty is an unlimited fine. The Court can also order a company to carry out specific work to remedy the breach of duty.

Before the Act comes into effect companies would be well advised to review their procedures and should consider the following steps:

Assess who senior managers are and increase their health and safety training;
Delegated responsibility? Ensure everyone in the management chain is aware of the scope of their duties and ensure that there are no omissions or loopholes;
Carry out a risk management review of the business by a competent person;
Review health and safety policy to ensure compliance;
Extend health and safety training to contractors;
Vet contractors to ensure that they comply with their own duties and responsibilities under health and safety legislation;
Keep clear and adequate records of statutory health and safety inspections/ tests and of policy, strategy and decision making within this area;
Create a safety culture at work; and
Take specialist legal advice from the outset of any serious incident.

Ashfords is regulated by the Solicitors Regulation Authority. The information in this article is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.

20th November 2007

Corporate Manslaughter And Corporate Homicide Act:

Introduction