Danger – company at work
A new law relating to corporate manslaughter comes into force this April.
After a protracted passage through parliament, the Corporate Manslaughter Act finally comes into force on 6 April this year.
Mick Antoniw, a personal injury partner at Thompsons, outlines the main provisions of the new law and consider some of its implications.
Scope of the new law
The Act creates a new criminal offence of “corporate manslaughter”, which can only be brought against a company, as opposed to an individual.
It states: “An organisation is guilty of the offence if the way its activities are managed or organised by its senior management amount to a gross breach of a relevant duty of care and causes a person’s death.”
It is therefore mainly concerned with major breaches of duty and serious negligence arising from the decisions and activities of senior management, or indeed anyone who played a significant role in the management of a company or in organising any of its activities.
As the new law does not abolish the common law offence of gross negligence manslaughter, it may still be possible for charges to be brought against an organisation as well as individual directors (or other managers) for manslaughter.
Charges can also be brought against individuals including directors under the Health and Safety at Work Act 1974.
Duty of care
The duty of care set out in the Act covers the duties of an employer to its employees and the duties applicable under the law of negligence.
It specifically includes:
• the duties of an occupier of premises
• duties in connection with the supply of goods and services
• the carrying out of construction and maintenance operations, plant and vehicle maintenance and in effect any other commercial activity.
The Act also covers deaths in custody or detention including during transportation in a vehicle. It applies to deaths in England, Wales and Scotland but not to the deaths of workers employed by UK companies abroad.
Proving the offence
Prosecutions will be brought by the Crown Prosecution Service not the Health and Safety Executive, and trials will take place in the Crown Court in front of a jury that will have to decide if the conduct of the company falls far below what could reasonably have been expected in the circumstances. They will consider the seriousness of the failure and the extent of the risk of death.
The jury will be entitled to take into account anything they consider relevant such as company attitudes, policy, systems and practices which may have encouraged failure or produced a tolerance of it.
The Act specifically invites the jury to consider breaches of any health and safety guidance that relates to the breach. The Act is therefore likely to give a legal status to a whole plethora of documents and guidance notes such as the Institute of Directors or HSE voluntary guidance on health and safety aimed at directors of companies and board members.
In the past it has not been possible to prosecute Crown bodies because they enjoyed Crown immunity. For most purposes the Act has abolished this immunity and the Crown can now be charged with corporate manslaughter.
There are some important exceptions that relate to the military, police, emergency services and child protection and probation functions. These are mainly excluded from the law except in respect of employer/ employee duties and duties as occupiers of premises. Public and government policy making processes are also excluded.
During the passage of the bill through parliament, there was considerable thought given to the sort of penalties that could be imposed. Although the main penalty is seen as an unlimited fine (see below), it is likely that the powers given to the court in respect of remedial orders will become increasingly important.
Courts have been given virtually unfettered power to make orders requiring companies to take such steps as they consider necessary to remedy a fault and to remedy any other deficiencies to prevent other deaths in the future. It represents a limited form of corporate probation, but is a nevertheless welcome innovative addition to the health and safety arsenal of penalties.
An unlimited fine: Until guidance is available it is not clear how financial penalties under this Act will differ from penalties under the Health and Safety at Work Act 1974 and guidelines set by existing case law. A government consultation is underway and the suggested level of fine is in the region of five to ten per cent of turnover.
Publicity orders: This is a naming and shaming provision. While no court has yet used the powers, they will have unlimited power to order a company to publicise the fact of conviction and the circumstances leading to the conviction. This could consist of public advertisements in newspapers, on radio and on TV. This power will come into effect in autumn 2008 when guidelines will be made available.
Corporate probation: This appears under the heading of remedial orders but is in fact a form of corporate probation and is probably the most innovative and progressive part of the Act.
A company convicted under the Act may be required by order of a court to take specified steps to remedy any matter that appears to have resulted from the breach and to have been a cause of death and to take steps in relation to any deficiencies in health and safety matters. Those deficiencies may be in the organisation’s policies, systems and practices.
This power represents a new proactive approach to safety and involves looking at the cause of an accident including a company’s system of management, culture, approach to safety, training and systems of operation. This may extend to looking at the system of senior management of a company including the role of company directors.
One consequence of the Corporate Manslaughter Act is the effect it is likely to have on the investigation of deaths at work. As charges can only be brought under the Act by the CPS, the police are more likely to be committed and focused on the investigation of deaths at work than in the past.
Failure to investigate properly may result in an increasing use of judicial review. Inquests are already becoming more important in such cases and where there are findings of unlawful killing, the CPS will be expected to give serious consideration to the inquest evidence and the bringing of charges under the Act, at common law and under the Health and Safety at Work Act.
This may result in a greater use of that Act and increasing numbers of charges being brought against directors of companies. Another consequence where there are convictions may be the increased use of the Company Directors Disqualification Act 1986.
The Corporate Manslaughter Act is a good start, but the government will have to be held to promises made during the parliamentary debate to look at the issue of directors’ duties and to consider amending existing legislation or introduce new legislation.
The gap whereby directors of companies can be imprisoned for corporate fraud offences, but not for health and safety offences, which lead to the death of a worker has to be filled by a Labour government (as it certainly won’t be by a Conservative one).
Difficulty in securing convictions against large companies after deaths at work fuelled calls for the new law. Existing health and safety law required the identification of one individual as a “controlling mind” which played the key part in a decision or failure which led to a person’s death.
New legislation was therefore needed to be able to hold employers to account for deaths at work due to gross negligence. It became clear early on during the parliamentary progress of the Act that there were many different views as to what the legislation could and should achieve.
In part the differing views refracted along political lines. On the one hand, the Conservatives were opposed to anything that would upset the business community and intent on watering it down where possible. On the other, there were those who were intent on extending it to cover deaths in custody (an important issue but not one this law for workplace deaths was originally intended to cover), and Labour MPs who simply wanted to ensure it had real teeth.
The Act as it now stands is undoubtedly a compromise and does not deal with the important issue of directors’ legal duties and accountability for company safety. Promises were made during the course of the legislation to review this aspect of health and safety legislation. The Act can therefore be seen as bringing the law to the half way stage. Needless to say, there is still more to do.