The Corporate Manslaughter and Corporate Homicide Act 2007 (“the Act”) comes into force on 6 April 2008.
What is the offence?
The offence is “corporate manslaughter”. An organisation will be guilty of the offence if the way in which its activities are managed or organised;
- cause a person’s death; and
- amounts to a gross breach of the duty of care owed to the deceased.
However, the organisation will only be guilty if a substantial element of the breach is the way in which activities are managed or organised by its senior management.
Who are “senior management”?
Senior management play a significant role in the;
- actual management of the organisation; or
- decision-making process in relation to management.
In reality, the identity of senior management will depend on the size and structure of the organisation.
Fine: Unlimited! Recent health and safety fines have run into millions of pounds (Transco were fined £15 million for health and safety breaches in August 2005) and it is expected that corporate manslaughter fines will be higher.
Remedial action: organisations can be ordered to take steps to remedy a breach within a time limit.
Publicity Orders: courts will be able to order organisations to publicise details of their conviction, amount of the fine and terms of the order.
What about individuals’ liability?
There is no liability for individuals; so no fines and no imprisonment.
However, remember that police investigations will focus on senior management. This could increase pressure for parallel health and safety charges against individuals under which they could still be found liable.
What should employers be doing?
- conduct a review of the application, effectiveness and enforcement of health and safety management systems;
- carry out risk assessments and eliminate risks;
- consider the culture of the organisation, attitude to health and safety and make any necessary changes;
- review liability insurance – check that covers legal costs incurred underthe Act;
- train staff and clarify responsibilities;
- update organisational charts – ensure job profiles reflect roles carried out;
- check/amend whistleblowing policy – encourage reports of health and safety breaches and/or concerns;
- ensure company cars/vehicles are safe (the police have said they will investigate whether companies have carried out basic checks, for example, ensuring staff have MOT certificates, a valid driving licence and insurance).