What does the new Corporate Manslaughter Act mean for employers? Ross Bentley investigates.
When the long-awaited Corporate Manslaughter and Corporate Homicide Act 2007 comes into force on 6 April it will create an offence that in England, Wales and Northern Ireland will be called corporate manslaughter and in Scotland, corporate homicide.
The Act will make it possible for employers to be prosecuted if someone has been killed at (or by) work because of a failure in how the organisation’s activities are managed or organised, amounting to a ‘gross breach of duty’. Not only are employees encompassed under this duty of care, but also customers – for example, train passengers, and members of the public, such as people living in the vicinity of a power plant.
Companies operating in all sectors are covered by the Act but those with the highest fatal injury rates, such as construction and agriculture, will undoubtedly find themselves under the spotlight.
And HR directors could be in the firing line under the new regulations if it is found that a death came about due to a failure at senior level to put in place adequate health and safety systems and procedures.
Kevin Elliott, a partner at law firm Eversheds, says organisations that are found culpable are likely to face unlimited fines.
So what are employers doing to avoid any possibility of a fatality and make sure they don’t get prosecuted?
Mark France, a senior health and safety adviser at risk management consultancy National Britannia, says the arrival of this new law should spur all employers to revisit their health and safety procedures and ensure “there are no gaps”.
He said: “Organisations should be looking at their safety plans and asking themselves a number of questions: Are the right structures in place? Is everyone, especially senior managers, competent in this area and aware of their responsibilities? Are senior managers ensuring that line managers and their teams are equipped with the right resources and knowledge?”
Proactive senior managers
Neil Murray, head of health and safety at scaffolding specialist the SGB Group, says it is an issue that most organisations are acutely aware of.
“This Act is all about the corporate entity, the culture of a company. Directors and senior managers need to be informed to ensure they know what role they must play in terms of strategic safety,” Murray says.
“Even the financial director, as a member of the senior management team, must be actively involved and have a real understanding of why the business is dedicating so much of its resources to health and safety.”
At the Chartered Institute of Personnel and Development, employee relations adviser Ben Wilmott welcomes the new legislation and says it should bring no further obligations for employers who already comply with existing health and safety laws.
He points to the Health and Safety at Work Act 1974, which legislates that employers have a duty of care towards their employees, and the Management of Health and Safety at Work Regulations 1999, which oblige organisations to conduct adequate risk assessments.
“Providing HR is already focusing on health and safety in the way they should, the new Act should hold no fear,” Wilmott says.
Richard Jones, policy and technical director at the Institution of Occupational Safety and Health, believes the impending law will focus the minds of senior management, especially HR.
“HR should make certain that the organisation has access to competent health and safety assistance, and that job descriptions include health and safety responsibilities, which are included in performance reviews,” he advises.
Ensuring that the workforce is sufficiently trained, supervised and resourced and that an adequate disciplinary process is in place is critical, Jones adds.
He believes that the Corporate Manslaughter Act was triggered by a number of high profile disasters, as prosecutors found it impossible to act against organisations.
“There was a lot of public disquiet following the Zeebrugge disaster in 1987 where 193 deaths occurred because the cross-channel ferry the Herald of Free Enterprise capsized after leaving port with its bow doors open, and the investigation found problems of safety culture and management,” Jones says.
Prior to this Act it proved very difficult to prosecute large corporations for gross negligence, manslaughter or culpable homicide because the law required proof that a “directing mind” (that is, an individual at the very top of the organisation who can be said to embody its decisions or actions) was guilty of the offence.
Now the law creates a variant of this offence specific to organisations where criminal liability can be attributed where the way the organisation’s activities are managed by its senior managers is grossly in breach of a duty of care it owes a person, causing their death.
Guilty organisations will be ordered to take remedial measures to ensure they put in place adequate safety systems and procedures. Anid they may well face a publicity order requiring them to make public what went wrong and what is being done to repair the situation. “This could mean organisations having to take out an advert in a national newspaper or trade journal. There’s an element of name and shame and culpable organisations may experience huge damage to their brand and reputation,” warned Elliott.
Although the latest figures from the Health and Safety Executive show 241 workers were fatally injured in the workplace during 2006/07, it is predicted that only a handful of organisations will face prosecution under the new Act each year. This comes from an impact assessment carried out by the Home Office in 2006, where it was estimated the proposed law would lead to a possible 10-13 extra prosecutions annually.
Corporate Manslaughter and Corporate Homicide Act 2007 – employer checklist
- Assess your organisational structure to determine who could be considered a ‘senior manager’ – these individuals should be appropriately trained and competent for their role.
- Review job titles and job descriptions to ensure they represent the seniority of the post-holders’ position.
- Provide update training for senior managers on their health and safety responsibilities.
- Review all health and safety policies to ensure that statements made and standards set are achievable and do not exceed legal obligations, unless there are good reasons.
- Check that your insurance cover includes legal protection in the event of criminal charges for corporate manslaughter.
- Review your health and safety culture to promote a safer environment for your employees and, where relevant, the public.
- Revisit your disaster management plan and ensure there is a protocol for dealing with the authorities and working with legal advisers if a fatality occurs.
- Consider insurance and indemnity policies for staff members who may need legal support during any investigation.
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