Are you in on the Act?
October 1st 2007

The introduction of the Corporate Manslaughter and Corporate Homicide Act 2007 means the burden to comply with health and safety legislation in the UK has never been greater explains Catherine Davey( Partner) and Sarah Murray (Associate) of Stevens & Bolton LLP

If, following an incident, a business faces investigation by the Health and Safety Executive or local authority where the investigation reveals limited and/or inadequate compliance with health and safety regulations or, worse, a complete failure to comply, the most likely result is prosecution of the company and/or individuals concerned under health and safety legislation. In circumstances where a death has occurred a prosecution of directors and possibly the company concerned for manslaughter is likely.

The Act is due to come into force in April 2008. It does not introduce new obligations for businesses to comply with but instead aims to provide a mechanism whereby companies (as opposed to individuals) can be held accountable for health and safety breaches leading to employee deaths. The provisions of the Act appear simple although it remains to be seen how it will be applied in practice. It creates a new offence of corporate manslaughter. Both limited companies and partnerships qualify as "corporates" within the meaning of the Act although a business operated by a sole trader does not.

Duty of care To prove that a corporation is guilty of the new offence the prosecuting authority will need to show that the way in which the corporation's senior management organised its activities caused a person's death by a gross breach of a duty of care. The offence is wide ranging and points to note include the following:

As well as applying to UK companies and partnerships it also applies to foreign companies registered in the UK if the death or injury leading to death took place at a place within the jurisdiction of the UK courts; It is not limited to employee deaths – any death caused by the corporation's "gross breach of duty of care" will be covered.

'Senior management' is not limited to company directors or partners in a partnership – it includes people who play a significant role in managing or directing business activities within the corporation in question.

Gross breach The test for 'gross breach' is whether there has been conduct falling far below what could reasonably have been expected in the circumstances. In ascertaining whether the test is met relevant factors will be whether there has been a failure to comply with health and safety legislation; how serious that failure was and how much of a risk of death it posed. Other relevant factors may also be whether there are any attitudes, policies, systems or accepted practices within the organisation that may have encouraged or produced tolerance of such a failure.

The Act is intended to make it easier for prosecuting authorities to obtain a conviction. Under the current law they have faced a number of difficulties: For an individual to be guilty of manslaughter the prosecuting authority needs to show that the defendant owes a duty of care towards the victim, that duty of care has been breached, the breach caused the death of the victim and the breach was so bad that when viewed objectively it amounts to gross negligence warranting a criminal conviction. It has historically been difficult to convince juries that a breach of health and safety legislation is so serious that it amounts to gross negligence and therefore there should be a conviction for manslaughter. This has meant that on the whole only the most flagrant breaches of and callous disregard for heath and safety regulations have led to convictions for manslaughter. Where convictions have been obtained for individuals since 2005 sentences have ranged from 15 months imprisonment up to 14 years imprisonment.

When an individual who is "the embodiment of the company itself" is found guilty of manslaughter the company can also be convicted. With small companies once a director or manager has been convicted of manslaughter it is usually straightforward to then obtain a conviction of the company. With larger companies the problem is showing (a) that any individual is responsible for the breaches and therefore guilty of manslaughter; and (b) that individual is the embodiment of the company.

This has meant that corporate health and safety failures leading to, amongst other tragedies, the Herald of Free Enterprise disaster, the Kings Cross Fire and the Clapham and Southall rail crashes have all passed without convictions of companies or individuals for manslaughter.

Beneficial for small businesses With the introduction of the Act and the new offence these problems are swept away, particularly in relation to the prosecution of larger organisations. While this may be worrying for large businesses, for small businesses it is likely to be beneficial. While prosecuting authorities may continue to threaten the prosecution of individuals for manslaughter the well advised director or partner will offer to plead guilty to charges of corporate manslaughter on behalf of the company or partnership in return for a promise not to prosecute him or his fellow directors or partners personally for manslaughter. This may be attractive to prosecuting authorities; they will secure their conviction easily and cheaply and there will be accountability on the part of the company concerned. It is unlikely to succeed as a tactic in circumstances where the director or partner concerned is in flagrant breach of his or her obligations under health and safety obligations.

No business can afford to ignore or be complacent about its obligations to employees, contractors and the general public. Businesses would be well advised to see the introduction of the Act as a reason to review their compliance with health and safety legislation.