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Corporate Manslaughter and Corporate Homicide Act

publication date: Jan 18, 2008
author/source: Craig Swallow
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After ten years in the making, the Corporate Manslaughter and Corporate Homicide Act has added another layer of liability for organisations and, importantly, those who run them. An employer's duty of care is not only a legal requirement but now it must be seen to be demonstrated that a company or organisation is doing everything practicable to protect the health and safety of employees.

Previously, an organisation could be prosecuted at common law for manslaughter, although attempts to do so were mostly unsuccessful. Now the Act, when it comes into force on 6 April 2008, will make it easier to prosecute companies and other large organisations when gross failures in the management of health and safety lead to death.

The Proposed New Test

An organisation will be guilty of corporate manslaughter if a gross management or organisational failing causes a person's death. The new offence will apply to management failings by an organisation's senior managers - either individually or collectively. The focus has therefore moved from the c u l p a b l e individual to collective senior management responsibility. However, individuals who commit a serious breach of a duty of care leading to a person’s death may still face prosecution and possible imprisonment for the common law offence of gross negligence manslaughter.

Within the Corporate Manslaughter and Corporate Homicide Act a gross failure is defined as conduct that "falls far below what can reasonably be expected of the organisation in the circumstances". In assessing whether there has been a gross failure, the proposed law will require a consideration of whether the organisation complied with health and safety legislation and guidance. If a health and safety breach is established, the jury must then consider (a) how serious was the failure, and (b) how much of a risk of death resulted from the failure. Furthermore, the jury will need to consider whether the attitudes, policies, systems or accepted practices within an organisation were likely to have encouraged or produced tolerance of non-compliance with health and safety law.

It is estimated that more than half of UK businesses are at risk of substantial fines under pending legislation. The legislation will mean that businesses, as well as individuals, could be prosecuted and face unlimited fines if management failings are judged to have caused the death of an employee (or a member of the public). Fines for conviction under the legislation are, like convictions for breaches of health and safety legislation, up to an unlimited amount. However, convictions for corporate manslaughter (corporate homicide in Scotland) will carry a greater stigma than a conviction for a health and safety breach. The fines could be higher and there will certainly be greater and more adverse publicity.

Lone Workers

The new legislation has helped focus attention on lone workers who are particularly vulnerable. Changing work patterns and the need for businesses to 'downsize' are resulting in more and more staff becoming classified as lone workers. Employers have responsibilities for the health, safety and welfare at work of all their employees and the health and safety of those affected by the work e.g. contractors and self-employed people who companies may engage. These responsibilities cannot be transferred to people who work alone. Lone workers by definition are more vulnerable to accident and aggression than most employees and therefore it is vitally important that their employers develop long-term strategies in order to protect their safety. Risk assessment should help decide the right level of supervision, training and protective equipment that needs to be employed.

One way of protecting lone workers is through a dedicated alarm system. With the increasing number of personal attack alarms now on the market, the Association of Chief Police Officers (ACPO) are reviewing its position on their use. Many companies have been issuing lone workers with mobile phones equipped set up with a speed-dial for staff to raise the alarm if threatened. A mobile phone is a communications tool; it is not necessarily an effective tool to use when faced with an aggressor or other form of danger. Arguably, by providing a worker with a mobile phone an employer increases the risks faced by the worker.

ACPO have stated that no single action ‘single push’ PA devices should be allowed. Instead they now say that portable PA devices should be dedicated, not incorporate any other functionality and should have a way of dual verifying an alarm.

Products like Identicom™, which this year received the ACPO sponsored Award at IFSEC 2007, are fit for purpose and conform to police policy. For example, Identicom is equipped with a discrete emergency button that activates the alarm, which opens up a voice call to a third party whilst at the same time discreetly notifying the wearer that the alarm has been triggered and is active. A second concealed button enables the wearer to leave details of their whereabouts and notify their employer when they know they are entering a potentially hazardous situation.

Prior to the Corporate Manslaughter and Corporate Homicide Act coming into force in four months time, companies and organisations need to review their health and safety procedures and in particular reassess their lone worker protection strategy. In the event of a fatality, a company’s defence would be helped if the business could demonstrate a good health and safety culture that is actively encouraged by managers.

by Craig Swallow,
Managing Director,