The Corporate Manslaughter Bill will make boardrooms take employees' health and safety more seriously than ever, say Duncan Astill and Sarah Lamont
13 May 2005
There are no shortage of headlines on the subject of corporate manslaughter. For years the threat of changes to the law has sent a chill down boardroom spines. Only days before the government introduced its latest proposals a judge at Preston Crown Court instructed a jury to find Barrow Borough Council not guilty on seven counts of manslaughter "for reasons of law", while the prosecution continued against the council's design services manager over the deaths from Legionnaires' disease.
Changes to the law of corporate manslaughter have been promised by the government since 1997. Initial proposals were published in 2000 but nothing concrete had been done until last month, when the government unveiled a new draft bill: the Corporate Manslaughter Bill.
Back in 1996 the Law Commission published a report on the law of manslaughter. They devoted special attention to corporate manslaughter because of the public's demand for use of the law of manslaughter following disasters such as King's Cross and the Clapham rail crash, the large number of people who die in factory and building site accidents each year and the fact that there had been only four successful prosecutions for corporate manslaughter at the time. The report recommended that a new offence of corporate killing be introduced for situations where the defendant's conduct fell far below what could reasonably be expected. The intention was not that individuals should be liable to prosecution for the offence; individuals would continue to be subject to the general law of manslaughter.
But what is the problem with the present law? Companies are regularly prosecuted under health and safety legislation for deaths in the workplace. Every month six-figure fines are handed out to companies whose employees have died at work because of management failings. The problem is the perceived injustice caused by the failure to convict an organisation of the offence of manslaughter rather than for breaches of health and safety legislation.
For manslaughter you need to establish the personal guilt of a senior manager who is the directing mind of the organisation before the firm itself is guilty. In complex organisations, where duties are often delegated by the directing mind, individual fault may not lie with the appropriate person. Convictions were therefore limited to very small organisations where the individuals responsible were clearly also the directing minds of the company. In January this year the MD of a small construction company was sentenced to 16 months in prison for the manslaughter of an employee who was killed after falling through a roof light. His company was also charged with corporate killing but went into liquidation before the hearing.
The current proposals are not too dissimilar to the original corporate killing proposals made by the Law Commission in 1996 although there are no proposed changes to the existing law of manslaughter as it applies to individuals.
The proposed new offence of corporate manslaughter will require a management failure on the part of senior managers which caused the death in question. A senior manager is someone who plays a significant role in making decisions about how the whole or a substantial part of an organisation is managed. The failure must be a gross breach of a duty of care owed by the organisation to its employees or otherwise in connection with its commercial activities (for money or not).
The government says that it is its intention to reserve the new offence for cases of gross negligence. It is designed to complement rather than supplant existing liabilities under health and safety law. An individual cannot be guilty of aiding, abetting, counselling or procuring an offence of corporate manslaughter.
But we are still a long way off from seeing these changes being implemented. The lack of impetus from the government has inspired some organisations and MPs to bring about changes in the present law.
The TGWU and construction union Ucatt started a campaign to make company directors: "Take the workplace health record of their company as seriously as its financial one." Central to this was the proposed Health and Safety (Directors' Duties) Bill. The bill had its first reading on 12 January this year and was scheduled to have a second last month. With parliament dissolved for the general election the bill died but there may still be some wind in the sails of the campaign in the future.
This is not a corporate killing bill. Instead, its aim is to reinforce the existing duty on directors to ensure that their company meets its health and safety responsibilities and to impose a duty on larger companies to appoint a health and safety director. In theory this would make it easier to prosecute individual directors, but delegating health and safety responsibility makes it difficult to prove that any failing was due to the neglect of a director or committed with their consent.
In contrast, the Corporate Manslaughter Bill's function is to see companies charged with corporate manslaughter rather than breaches of the Health and Safety at Work Act 1974. Where a company would currently face an unlimited fine for breaches of the Health and Safety at Work Act they would now receive largely the same fine after being found guilty of corporate manslaughter. While this may not appear much of a change there is a belief that a corporate manslaughter charge will cause far more reputational damage than a health and safety prosecution and therefore lead to boardrooms taking it far more seriously.
To some extent, this is just a different approach and we may never get to see which is more effective. Either way, neither bill requires directors and senior managers to do any more than they should be doing already.
Duncan Astill and Sarah Lamont are partners in the employment department at Bevan Brittan Solicitors