RSS feedsAfter years of consultation and delay, the Corporate Manslaughter and Corporate Homicide Act 2007 finally comes into force across the UK on 6 April 2008. The Act creates a new offence of Corporate Manslaughter (or ‘Corporate Homicide’ in Scotland). This offence will be committed where a fatality is caused by a ‘gross breach’ of a duty of care and where the actions of the company’s senior management played a ‘substantial’ part in the breach.
Health and safety checks
A gross breach occurs where there has been failure to comply with health and safety legislation and where the organisation’s conduct falls far below what can reasonably be expected.
In determining whether the breach was gross, a jury will be directed to consider a number of factors, including safety culture, the seriousness of the failure, the risk of death and the organisation’s compliance with health and safety guidance.
Virtually all workplace fatalities will lead to a police manslaughter investigation. Such investigations can often go on for years and put enormous strain on an SME, in terms of management time and resources, business disruption, reputational damage and staff morale.
Should the investigation lead to prosecution, a jury in the criminal courts will try all cases. It will only be a matter of time before such a prosecution succeeds.
In the event of a conviction for corporate manslaughter, the current proposal is for fines of between 2.5% and 10% of gross turnover averaged over a three-year period. Such fines are not insurable so the financial strain on an SME will be enormous.
The court may also impose a ‘publicity order’, which would require the company to publicise the details of the conviction in trade journals, national press, TV or radio, the organisation’s website and its annual report. The reputational damage in respect of such publicity could be disastrous for an SME and could far outweigh any fine.
Your business should ensure that it has done everything it can to prepare for the Act. For SMEs this is a major challenge as larger companies generally have in-house health and safety experts, as well as legal teams to ensure their operation complies with relevant law and guidance.
Be proactive
Any shortcomings must be brought to the attention of the management team. So what can be done by SMEs to ensure they minimise the risk of prosecution under the new Act?
The first step is to ensure that senior management handles the business’ health and safety regime appropriately.
This involves leading from the front and ensuring the board gives health and safety the highest priority.
The Health and Safety Executive recommends appointment of a ‘health and safety director’ at board level. There is also clear guidance from the Institute of Directors on how to manage health and safety at board level.
An excellent ‘safety culture’ throughout the entire workplace should be encouraged by senior management to ensure there are open lines of communication. All workers should be encouraged to report near misses, accidents and any other safety issues, however small.
The safety management system, when applied, must ensure the system is fully monitored and reviewed by competent personnel. Particular focus should be given to risk assessments, the cornerstone of good safety management. All risks must be assessed in writing by a competent person and assessments must be kept under review.
Finally, the Health and Safety Executive recognises the difficulties faced by SMEs in understanding and complying with the raft of HSE regulations. Considerable guidance is given on the HSE website and there is also a helpline. Don’t be afraid to ask for help. The consequences of getting it wrong are too severe.
Take control:
Lead from the front – Lead from the front and ensure that health and safety is adequately resourced and the safety culture in the organisation is exemplary
Competency – Make sure you have real competency within the organisation.
Assess risk – All activities of the business must be risk-assessed in writing, and reviewed when there is significant change, or when you suspect they are no longer valid.
Safety culture – Ensure two-way open communication at all times. Encourage all workers to report incidents, accidents, near misses or any additional safety concerns they may have
Monitor – Having correct written procedures alone is not enough. Make sure you monitor compliance with the safety management system and that staff are adequately trained and supervised
Review – Safety management must always be kept under review and adjusted to reflect any changes in the business or the external environment by content personel.
David Leckie is a partner specialising in health and safety law and regulatory matters with law firm Maclay Murray & Spens
