On 6 April 2008 the Corporate Manslaughter and Corporate Homicide Act 2007 will create the new offence of corporate manslaughter. The Act will make it possible for companies rather than individuals to be punished where there has been a gross failing throughout the organisation in the management of health and safety with fatal consequences. The Act will affect all businesses and construction organisations need to be aware of the following key points:
An organisation will be guilty of an offence under the new Act if the way in which any of its activities are managed or organised by ‘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.
The question of whether a duty of care exists is a matter of law but at the very least a duty of care is owed to employees and others working for the organisation, workers whom it supervises, all those engaged by it to carry out construction works and those visiting its sites.
If convicted under the Act the risk is an unlimited fine. The Court can also make a remedial order requiring the working practices/defects which led to the death to be changed. If the offender fails to comply with such an order it will be guilty of another offence liable to an unlimited fine.
The Court can also require publication of details of the conviction stating the particulars of the offence, amount of the fine and terms of any remedial order. Failure to comply with a publicity order is also an offence and liable to an unlimited fine.
What should be done?
- Consider all health and safety guidance relevant to your business. For construction organisations one of the most important piece of health and safety legislation is the Construction (Design and Management) Regulations 2007. Are you and your organisation well aware of its requirements?;
- A jury will look at the extent to which your organisation was in breach of its health and safety requirements and how serious those failings were. Accordingly, you should regularly review your internal policies and procedures and review the training given to both senior management and all staff – is it adequate?;
- Promote a health and safety culture. Allow employees to report any concerns on a confidential basis;
- Consider who in your organisation would be considered as ‘senior management’. Are you satisfied that they are competent? Make sure they are well aware of the Act and the implications of their actions;
- Review how you currently deal with health and safety breaches when they occur – are they well documented and are relevant steps taken to prevent repeat breaches?
Remember: You will not fall foul of the Act if you comply with all relevant health and safety legislation and guidance.