In the dock
Organisations will soon be answerable for the actions or omissions of any senior manager if a death occurs. Kevin Elliott explains.
The Corporate Manslaughter and Corporate Homicide Act, which comes into force in April 2008, appears to address the weaknesses of the law as it presently stands.
Currently, a single individual, identifiable as the directing mind of the company, has to be personally guilty of gross negligence or manslaughter before an organisation can be convicted of corporate manslaughter.
The Act is Parliament’s attempt to remove the barrier of having to identify the controlling mind of an organisation. It provides that an organisation will be guilty of corporate manslaughter if an organisational or gross management failing causes a person’s death. This means that the actions of senior management below director level could still be deemed to be the actions of the organisation.
The Act defines a senior manager as a person who plays a significant role in an organisation in:
- Making decisions about how the whole or a substantial part of its activities are to be managed or organised
- The actual managing or organising of the whole or a substantial part of those activities.
Two specific disciplines of management responsibility are covered – taking decisions about the organisation of activities and the actual management of those activities. This seems to extend the definition of ‘senior manager’ to encompass operational managers alongside strategic decision-makers.
An organisation is guilty of the new offence if the way its activities are managed or organised by its senior managers causes a person’s death and amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.
Failures in duty of care
So the new offence comprises two elements. The first is that a management failure must have caused the death. Explanatory notes to the Act indicate that such failure must be more than a minimal contribution to the death and there must be no break in the chain of causation. However, the management failure does not need to be the sole cause of the death.
The second element relates to the ‘relevant duty of care’ that the organisation owed to the deceased. Such a duty can arise from an organisation’s role as employer, occupier, supplier of goods or services, constructor or maintainer, or keeper of any plant, vehicle or ‘other thing’.
Once the duty of care has been established, the prosecution must demonstrate gross breach of that duty. Such a failure is defined as conduct that “falls far below what can reasonably be expected of the organisation in the circumstances”.
To assess this, the proposed law will require a consideration of the organisation’s compliance with health and safety legislation.
Rather than consider the knowledge and motives of senior managers, the risk of death from any failure to comply with legislation will need to be evaluated in the first instance. Attention will then be given to the attitudes, systems, policies and accepted practices within the organisation which may have encouraged or tolerated non-compliance with the legislation.
The whole ethos of the legislation is to emphasise the importance of compliance with existing health and safety law and guidance. Statements in policy documents need to be clearly evidenced in practice and not exceed legal thresholds.
If a statement of intent is unachievable and a fatality occurs, the organisation could be held accountable to its own declared standard rather than the legal minimum.
In this context, many organisations make laudable declarations as to their intent for their employees and stakeholders, but these very declarations, if not deliverable, should be re-evaluated.
Kevin Elliott is regulatory partner at Eversheds
What you should do
- 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 when a fatality occurs.
- Consider insurance and indemnity policies for staff members who may need legal support during the period of any investigation. This will need to cover expenses where they are not personally found guilty of such offences.