Corporate Manslaughter – where the buck stops
April 22nd 2008 Speculation over when and whether the Corporate Manslaughter Act, which comes into force this month, will have any real impact continues, but don't take this as an invite to take the legislation lightly. Britannia's Mark France outlines the implications of the new Act and suggests some key areas to review in light of its arrival
More than 40,000 fatalities have been recorded in 'commercially-related circumstances' in the UK over the past 40 years. Only 34 of these led to charges under the common law of manslaughter with just seven successful convictions.
This low prosecution rate was linked clearly to the burden placed on the Crown under previous legislation to identify a 'controlling mind' in the senior management of a business, whose actions led directly to the fatal accident.
In practice this could only be applied to smaller enterprises whose directors were more likely to be involved in day-to-day operations and to have therefore directly influenced events leading to the fatal incident.
Demonstrating a conclusive link between the boardrooms of larger organisations, where there is more than one director, and work-related deaths has proved far more difficult.
The new Corporate Manslaughter Act will make it easier to hold senior management accountable. Already the Sentencing Advisory Panel has proposed that judges be advised to impose fines of between 2.5% and 10% of average turnover on businesses convicted under the new Act.
While not imposing specific new duties, the Act will reinforce senior management's accountability in respect of existing obligations to protect employees and others.
There is a danger that many businesses regard their premises as low risk and appear to be taking the new legislation lightly. However such businesses could fall foul of the new legislation if those driving on their behalf were to be involved in fatal accidents, to which they as a corporate entity contributed. For example if an employee was to have a fatal crash, and the firm was found to have encouraged them to cram an excessive journey into a single day, blame may land at the employer's door.
Managing migrant workers
Another challenge for employers managing migrant workers, now thought to number around 1.1 million in the UK.
New guidance from the Health & Safety Executive reminds employers to ensure migrant workers can understand health and safety signs or warnings, using graphic images if language is a problem.
Employers must also check the international transferability of qualifications as any accidents caused by an employee's lack of recognised qualifications could make the company liable to prosecution. If such accidents are fatal and a firm had not checked the relevant paperwork the full rigour of the new manslaughter legislation might be applied.
These risks will increase pressure on those at the top to install mechanisms that ensure health and safety risks are managed effectively.
What will investigators look for?
If death occurs in a commercially-related incident, investigators will look for evidence of senior management failure that could have contributed to the incident. Even if there is a risk management system in place, any key gaps in that system or its implementation could be interpreted as 'gross negligence' and may lead to prosecution.
Employers must also ensure that managers in the field have the skills and competence to discharge health and safety duties and should make clear what is expected of them in terms of compliance. Managers in turn must ensure the policies and procedures of their employer are carried out rigorously by staff under their jurisdiction.
Failure to ensure procedures are fully implemented and documented could have serious consequences in the event of fatalities on site.
Don't forget contractors
Particular attention needs to be placed upon the health and safety performance of contractors. This has in the past proved to be the Achilles' Heel of many businesses as the accepted risk management processes laid down for employees are sometimes unknown to contractors or worse still, are alien to their work culture.
Under the new Act safety failures by contractors leading to death could rebound upon the business employing their services unless it could demonstrate a clear policy and procedure for ensuring, as far as is reasonably practicable, the safe practices of such third parties.
Whatever the circumstances of accidents, the consequences can be grave if organisations can't demonstrate robust risk management that runs from the top to the bottom of the organisation. More articles from National Britannia Group: | 
