Wednesday, April 02, 2008

The Corporate Manslaughter Act

The Corporate Manslaughter and Corporate Homicide Bill received Royal Assent on 26 July 2007 and became law on 6 April 2008.

Anyone who plays a significant role in decision-making could make the company responsible for their actions under the Act. The Act makes organisations answerable for the actions or omissions of any senior manager if a death occurs.

Previously one individual, identified by the company, could cause the company to be guilty of gross negligence or manslaughter. A single individual, identifiable as the directing mind of the company, had to be personally guilty of gross negligence or manslaughter before an organisation can be convicted of corporate manslaughter.

A systematic approach to risk management and health and safety should be put into place by all employers.

Health and Safety procedures need to be in place, covering all work activities, even to the point of checking the road-worthiness of all company vehicles and also employee’s private vehicles used on company business.

The Act is removes the burden of investigators having to identify the controlling mind of an organisation. Now, under the Act, if a gross failure in the organisation or management causes a person's death an organisation will be guilty of corporate manslaughter.

The new Act is about corporate responsibility and liability. Individuals can already be held to account and charged with manslaughter under existing legislation.

The Act defines a senior manager as a person who plays a significant role in an organisation in:

· Making decisions about how the whole or a substantial part of its activities are to be managed or organised

The actual managing or organising of the whole or a substantial part of those activities.

Explanatory notes to the Act indicate that management failure does not need to be the sole cause of the death.

A duty of care can arise from an organisation's role as either an employer, occupier, supplier of goods or services, constructor or maintainer, or keeper of any plant, vehicle or 'other thing'.

The prosecution must demonstrate gross breach of a 'relevant duty of care'. A breach of duty is defined as conduct that "falls far below what can reasonably be expected of the organisation in the circumstances".

Any investigation following a death at work will consider the risk of death from any failure to comply with legislation. Attitudes, systems, policies and accepted practices which might have encouraged, tolerated, or perhaps turned a blind eye” to, non-compliance with legislation.

Be aware that, if a Health & Safety statement of intent issued by the organisation is unachievable, the organisation could be held accountable by its own standards not the legal minimum.

Take Steps to protect your business:

“Senior managers” should be trained (and you need evidence of training) and be competent to carry out their jobs and their health and safety responsibilities.
Ensure job titles descriptions represent the job-holders position.
Review your health and safety policy. Statements made and standards set need to be achievable and not exceed legal obligations.
Provide legal protection in the event of charges of corporate manslaughter.
Have a procedure in place for dealing with a fatality and ensuring immediate access to legal advice.

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