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Death watch
Page 38
Page 39
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Recently introduced legislation on corporate manslaughter means companies must have watertight safety procedures in place or risk heavy penalties. Joanne Wardale reports.
0 n 20 July the government introduced the long-awaited Corporate Manslaughter and Corporate Homicide Bill in Parliament, with the approval of the unions and some employers' organisations. It will become law this autumn and he enacted next year.
Both sides feel they have won a victory'. The TUC has secured legislation to make it easier to prosecute companies whose negligence has led to the death of an employee; directors and senior managers have escaped the spectre of personal liability and imprisonment for such deaths.
Nevertheless this law has serious implications for companies, in terms of their financial position as well as their reputation.
The difficulties of securing convictions of companies for manslaughter were amply demonstrated by the failure of prosecutions arising from rail disasters such as Hatfield.
Problems arise with prosecuting a company under the existing legislation because a "directing mind"an individual who is regarded as embodying the corporation in his actions and decisions has also to be guilty of the offence. Lxcept in the case of small enterprises where a director or senior manager was directly involved in the decision or action which lead to the death, this is virtually impossible to prove in practice.
The new bill removes the "directing mind" requirement and creates a new offence of corporate manslaughter (or. in Scotland. corporate homicide ). To prove this offence. t he prosecution must establish: • The death of a person to whom a "relevant duty of care" was owed by an organisation • That the death wascaused by the way in which the "senior managers" of the organisation managed or organised its activities • That the way in which the death was caused amounted to a "gross breach" of the duty of care owed by the organisation to the deceased.
Matter of interpretation Breach of a duty of care is -grossif the guilty party's conduct falls "far below what can reasonably be expected of the organisation in the circumstances". Whether the breach is gross is a question for a jury to decide.
For example, a glaring failure by managemen to take action over a serious and known risk c death or serious injury is likely to be considere, a gross breach. For the first time, juries will b directed to take into account health and safet guidance that relates to the alleged breac of duty.
This means employers need to folloi guidance produced by the Health and Safet Executive that is relevant to their activities.
By removing the need to prove the guilt c a "directing mind", the bill should make easier to secure convictions for manslaughte However, the uncertainties inherent in th concepts of "senior manager" and "the way i which... activities are managed and organised will give defence lawyers ample scope to raise arguments on behalf of their clients, so convictions may not flow as quickly as the government anticipates.
Crucially, the bill excludes individual liability from the new offence. This will make directors and senior managers immune from being prosecuted personally for corporate manslaughter and fined or imprisoned.
But and it's a big but the bill doesn't affect the existing law on individual liability for manslaughter, where a death can be shown to have been caused by the gross negligence of a particular individual.
While there is no question of individuals being liable under the bill, conviction will certainly have substantial implications for a corporation's reputation. The impact of a manlaughter conviction on a firm's customers
bound to he greater than the impact of a onviction under health and safety legislation. Substantial fines can also be expected. It is nclear exactly how courts will fix the level ,f lines for the new offence; it seems reasonble to suppose that their approach will he imilar to that currently used in fatal cases, ut with higher fines to reflect the greater !vel of culpability implied by a manslaughnconviction. This could have serious
financial implications, particularly for smaller businesses.
'Me focus on senior managers, and the way they run an organisation's activities, is likely to lead to greater concentration on safety management systems.
The explanatory notes with the bill say: "There is no question of liability where the management of an activity includes reasonable safeguards and a death nonetheless occurs." Businesses will need to scrutinise their procedures for health and safety management and ensure that they are watertight.
Careful attention
High-risk areas such as maintenance of equipment, including vehicles, and proper training of staff using that equipment demand careful attention. Businesses that employ large numbers of casual staff who may, in some cases. not have English as a first language. need to ensure they are taking steps to communicate their safety procedures to such staff effectively.
Sole traders are not covered by the new legislation but could still face prosecution under health and safety legislation and criminal legislation. such as charges of manslaughter. Standard partnerships are not covered but partnerships are. •