Buddy Says: The new Corporate Manslaughter and Corporate Homicide Act 2007, received royal assent on 26 July 2007 and is expected to come into force on 6 April 2008. The new Act is intended to make it easier to prosecute larger organisations whose gross negligence leads to death. To date, only four organisations have been successfully prosecuted, all involving small companies.  Larger organisations have escaped liability due to the difficulty identifying an individual as controlling or managing the company’s affairs who can be proved guilty of manslaughter. The 2007 Act includes a new element, that of a substantial senior management contribution to an organisation’s breach of duty that results in the negligent act. The 2007 Act applies to all companies (including non-UK companies) operating in the UK, certain government bodies, the police and a partnership, trade union or employer’s association that is an employer. Those found guilty of corporate manslaughter face unlimited fines, remedial and publicity orders.

Employer information:  The new offence of corporate manslaughter, or corporate homicide as it will be known in Scotland, has two key elements. The first is that there must have been a gross breach of a duty of care. In considering whether a gross breach has occurred, juries will consider:

• Whether an organisation has failed to comply with any health and safety legislation, and if so;
• How serious that failure was; and
• How much of a risk of death it posed.

A jury may also consider the extent to which evidence shows that there were attitudes, policies, systems or accepted practices within an organisation that were likely to encourage the safety failure, or to have produced tolerance of it. This also means that employee representatives may be asked to comment on management attitudes to health and safety issues. You may wish to ask yourself how your organisation would fare. The jury may also have regard to any health and safety guidance that relates to the breach, including codes or similar publications. To be termed a “gross breach” an organisation’s conduct must “fall far below what could reasonably have been expected of the organisation in the circumstances.”

Who is owed a duty of care by an organisation? Well, a number of people, including;

• Employees or other persons working for the organisation or performing services for it;
• A duty owed as occupier of the business;
• A duty owed in connection with the supply of goods and services, construction or maintenance operations, any other activity in a commercial basis or the use or keeping by an organisation of any plant, vehicle or other thing.

The second element is that of a substantial senior management involvement in the breach of the duty of care. The definition of senior management in relation to an organisation means the persons who play significant roles in:

• The making of decisions about how the whole or a substantial part of its activities are to be managed or organised; or
• The actual managing or organising of the whole or a substantial part of those activities.

The conduct of senior management will be scrutinised by the courts to ascertain if their behaviour substantially contributed to the failings. If an organisation is found guilty of corporate manslaughter, the courts can impose unlimited fines. In addition, they may also may make a “remedial order” requiring the organisation to take certain steps to remedy the breach of duty, which could include remedying health and safety policies, systems or practices which brought about the breach in duty. The courts may also order a “publicity order” requiring the organisation to publicise the fact that they have been convicted of an offence. The order would force the organisation to state what the particulars of the offence were, the amount of the fine and finally the terms of any remedial order made. Such an order would have a very damaging impact on the reputation of an organisation and could severely disrupt the relationship with employees and clients/customers. Finally, if an organisation fails to comply with a remedial or publicity order they will again be liable to a fine.

There is still time to take practical steps before the new law comes into force. Particular attention should be paid to potentially hazardous areas of an organisation to ensure existing safety strategies are in place, and are effective at preventing potentially fatal incidents. You may wish to develop existing policies and procedures with guidance from the Health and Safety Executive. As well as assessing systems and procedures, the safety culture of an organisation should be assessed to ensure that attitudes to health and safety are of paramount importance.