Despite widespread criticism, the Corporate Manslaughter and Corporate Homicide Bill is likely to become law in 2007. But will it lead to a reduction in workplace fatalities?
by Sarah Lamont with Duncan Astill
01 December 2006
The courts are littered with failed corporate manslaughter charges. This is because the prosecution needs to establish, not only the personal guilt of a senior manager, but of one who is also the embodiment (or directing mind) of the organisation before the organisation itself is guilty of manslaughter. When faced with complex organisations where specific duties are often delegated downwards, individual fault may not lie with the appropriate person (if indeed there is such an individual).
However, even where manslaughter charges don't stick, companies are regularly prosecuted under Health and Safety legislation for deaths in the workplace. Fines are continuing
to rise (Transco received a record
£15 million fine in 2005) so why do we need manslaughter charges?
The answer lies in the health and safety 'brand image'. In the eyes of the public, health and safety is often considered to be a regulatory breach, not criminal; a health and safety conviction does not send out the same message as one of corporate manslaughter.
The new offence
Although changes may be coming the offence is set out in the draft bill as:
"An organisation is guilty of an offence if the way in which any of its activities are managed or organised by its senior managers caused a person's death and amounts to a gross breach of a duty of care owed .".
A "senior manager" is defined as someone who plays a significant role in the making of decisions about how the organisation or a substantial part of its activities are managed or organised, or someone who actually managed and organises the company. The offence itself goes on to refer to the breach of duty as "gross".
This is where the conduct of the organisation falls far below what can reasonably be expected of the organisation in the circumstances.
In considering this question the jury is asked to consider whether the company complied with health and safety legislation. Interestingly, this includes the extent to which the attitudes or practices that were likely to have encouraged the alleged offence, raising the possibility of evidence concerning unrelated practices being used to demonstrate a wilful disregard.
The government is at pains to point out that the intention is to reserve the new offence for cases of gross negligence: the most serious cases, where criminal sanction is appropriate.
No personal liability
An individual cannot be guilty of aiding, abetting, counselling or procuring an offence of corporate manslaughter. They can of course continue to face charges under the existing common law offence in respect of their own personal conduct and can be prosecuted individually under health and safety legislation. However, the critics say that without the individuals who hide behind the corporate veil being brought to account, there will continue to be an incentive to cut corners, save money and cost lives. The TGWU and the construction union Ucatt are running a campaign to make company directors "take the workplace health record of their company as seriously as its financial one". This appears to be having some momentum with the HSC having asked its civil servants earlier this year to "explore the possibility of imposing duties on directors" of private sector and public bodies.
The alternative view is that companies spend millions of pounds on marketing an image to consumers and that a manslaughter charge will cost far more in the marketplace than they will ever have to pay in fines. It is perhaps fair to say that any company convicted of corporate manslaughter, especially in the early days of the offence, is likely to cause reputational damage, but, then again, it is often investor confidence that remains crucial and a rebrand can be swiftly achieved.
Despite taking almost a decade to arrive, this bill seems certain to make it into law in one form or another. FMs should be strengthening their approach to heath and safety, making sure that this is led from the top and that proper compliance measures are in place. This will reduce the risk of a workplace fatality and at the same time reduce the risk of a manslaughter prosecution.
Sarah Lamont and Duncan Astill are partners at Bevan Brittan
FM QUICK FACTS
Every month, six-figure fines are handed out to companies whose employees have died while at work because of management failings
One retail giant received fines totalling £550,000 following its conviction under the Health and Safety at Work Act following the death of a customer