The Peninsula Advice Service is constantly marred with calls from employers that are worried about the possible impact the Corporate Manslaughter and Corporate Homicide Act 2007 could have on their business. With expert advice only a call away, clients of Peninsula can call through to the Health & Safety Advice Service on 0844 892 2785, 24 hours a day, 365 days a year where a trained advisor will provide you with all the knowledge you need.
When the Corporate Manslaughter and Corporate Homicide Act 2007 became law two years ago, it was seen as a real threat to businesses and re-affirmed the need for employers to sharpen up on their health & safety management systems. Next month, the first case of corporate manslaughter comes before the courts.
Bristol Crown Court will hear the first case of Corporate Manslaughter and for the first time there will be judicial interpretation of what the law means and requires in practice. The case follows the death of a junior geologist who was sent to take soil samples in a newly excavated pit when the wet and muddy sides collapsed trapping and crushing him. His employer Cotswold Geotechnical Holdings is charged with corporate manslaughter while the owner and managing director of the business is charged with gross negligence manslaughter.
In this article we restate the legal requirement and remind employers that if they have a robust health and safety management system which is followed in practice it is most unlikely that they will face such charges.
The Corporate Manslaughter Act did not introduce any new legal requirements or duties in respect of health and safety at work. All it did was create the new offence of corporate manslaughter, to remove a legal anomaly that made it difficult to prosecute large organisations for the existing offence of gross negligence manslaughter. The courts are now able to consider the wider corporate picture, looking at the collective actions, or more likely the collective failings of the organisation’s senior management.
To secure a conviction the prosecution must prove beyond doubt that the fatality was the result of a management failure that amounted to a gross breach of the duty of care owed to the deceased. A jury will have to consider whether the evidence shows that the company’s management of health and safety fell far below that which could reasonably have been expected. They will be able to take account of any failure to comply with relevant legislation, codes of practice and standards, the severity of those failings and the foresee-ability of potential consequences.
When considering the adequacy of management arrangements for health and safety at work the approach is not confined to any particular level of management. The court will consider how the activity was managed by the organisation as a whole - but it will not be possible to secure a conviction unless a substantial part of the organisation’s failure is at senior management level.
Factors that might be considered will range from questions about the systems of work in place, training for employees, suitability of equipment, issues of immediate supervision and middle management to questions about the organisation’s strategic approach to health and safety and its arrangements for assessing and avoiding risk along with its auditing and monitoring processes.
The offence is not just concerned with formal systems for managing health and safety. Of at least equal importance is how these formal systems operated in practice. Senior managers can delegate responsibilities but they must also check that those arrangements work in practice. They can no longer delegate and forget. They can no longer delegate and pass the entire blame onto other people. The Act specifically allows a jury to consider broader evidence of attitudes within the organisation to safety. Employers must also remember that directors and senior managers can still be prosecuted personally if they can be shown to have connived, or consented to a breach of the law or if that breach can be shown to have been due to their neglect.
Avoid the possibility of a charge of corporate manslaughter or personal liability and an unlimited penalty by making sure that your health and safety management system is robust. Make sure that risk assessments are carried out as a routine by staff who are competent to do so. Take the action required to comply with legal and good practice standards. Make sure that senior managers are involved in the process and that adequate resource is available for compliance. When responsibilities are delegated routinely monitor that the standard of compliance is as it should be.
Most importantly make sure that your written systems are observed in practice. To have written systems that comply with legal requirements and set good standards but which are not put into practice is a real gift to the prosecuting authorities. How would you explain to a jury that you knew what should have been done, that your system required it to be done, but as a business you managed to kill an employee?
Remember, if you want to know more about the Corporate Manslaughter Act and how it could affect your business, just call the Health & Safety Advice Service on 0844 892 2785, and they will be able to tell you everything you need to know. Available 24 hours a day, 365 days a year, there is always someone available to help.