Early April 08 saw the introduction of ‘Corporate Manslaughter’ into UK legislation. Companies, partnerships and multi manager traders will all be affected as they all have a duly of care to their employees. 

By Alan Vincent, senior partner at Vincents

The legislation also affects government bodies, trusts, hospitals and trade unions and effectively will apply to any body of people who employ other people to work on their behalf.

All employers have a duty of care to their employees and if a death is caused whilst in your employment, and you are in breach of that duty of care, then potentially you expose yourself to a Corporate Manslaughter charge.

In legal terms, if there is a failure of your health and safety systems which can be described as a “gross breach” of your duty of care, and that systematic failure and breach of duty can be ascribed to “senior management”, then your organisation will be exposed to prosecution.

It is no longer necessary for the prosecutor to point the finger at the particular Senior manager or director, he need only show failure of management or organisation that equals a “gross breach” of duty of care.

The act does not define who will be described as senior management, that will depend largely on the facts of each individual case and depend largely also upon the size and structure of the business that is involved and in which is to be prosecuted.

In assessing “gross breach” a jury will have to consider whether the evidence shows that the company’s conduct falls far below that which could reasonably have been expected of it. The factors that will be taken into account are:-

•    Did the company comply with HSE legislation and guidelines;

•    How serious was the failure and was the injury caused by the failure the cause of death;

•    What evidence is there of attitude of the employer to heath and safety systems practices and regulations;

•    Did the employer plan, deliver, monitor and review its health and safety procedures.

Health and safety clearly needs to be very high on your agenda as an employer, and should be dealt with at the highest level.

You should hand written guidelines from the board or from the highest level of management to middle managers. This proves that you take health and safety as seriously as can be reasonably expected.

Prosecutors are no longer required to find a controlling or a directing mind, so it will be easier in future to fall foul of corporate manslaughter, but it also means no individual can actually be sent to prison as no individual will be prosecuted, it will be the employing organisation. 

It is being muted that there should be huge fines inflicted for breach, causing corporate manslaughter, possibly as much as 10% of turnover.

Guidance produced by the Health & Safety Commission, HSE for Northern Ireland and Institute of Directors sets out an agenda for the effective leadership and implementation of health and safety.

It is designed for use by all directors, governors, trustees, officers and their equivalents in the private, public and third sectors, and applies to organisations of all sizes.

Step 1: Plan

The board should set the direction for effective health and safety management and establish a health & safety policy that is much more than a document – it should be an integral part of your organisation’s culture, of its values and performance standards.

Step 2: Deliver

Delivery depends on an effective management system to ensure, so far as is reasonably practicable, the health and safety of employees, customers and members of the public.

Step 3: Monitor

Monitoring and reporting are vital parts of a health and safety culture. Management systems must allow the board to receive both specific and routine reports on the performance of the health & safety policy.

Step 4: Review

A formal boardroom review of health and safety performance is essential. It allows the board to establish whether the essential health and safety principles – strong and active leadership, worker involvement and assessment and review – have been embedded in the organisation.

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By Alan Vincent  on   Jul 07,2008

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Keywords

corporate manslaughter    employment law    insurance   

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