Legal Update: The corporate manslaughter act 2007

The second corporate manslaughter prosecution in England goes to trial in June. Vince Galvin explores how organisations can protect staff and themselves from disaster.

21 June 2012

Lion Steel Equipment is charged under the Corporate Manslaughter and Corporate Homicide Act 2007 following the death of employee Steven Berry in May 2008. Berry fell through a fragile, plastic roof panel at the company's headquarters in Hyde
in Greater Manchester and
died as a result of his injuries.

The company, which specialises in the production of storage equipment, is due to face trial on 12 June 2012 at Manchester Crown Court, charged with corporate manslaughter and breaching section 2 of the Health and Safety at Work etc Act 1974.

Three of the company's directors, Kevin Palliser, Richard Williams and Graham Coupe, are also charged with gross negligence manslaughter as well as under section 37 of the HSWA 1974 for failing to ensure the safety at work of their employees.

The first corporate manslaughter conviction in Northern Ireland has also just been handed down. JMW Farms has been fined £187,500 for safety failings, which led to the death of its employee Robert Wilson in November 2010.

It is a "landmark law" according to The Health and Safety Executive: "For the first time, companies and organisations can be found guilty of corporate manslaughter as a result of serious management failures resulting in a gross breach of a duty of care." Before the act, a company could only be convicted of manslaughter if one employee committed all the aspects of the offence and was senior enough to be said to embody the company's "controlling mind".

Securing the conviction of a director of a small company that could be said to embody the mind of the organisation had been easy enough. The precedent-setting case had been R v OLL Ltd, 1994, also known as The Lyme Bay kayaking tragedy, when four teenagers died in a sea kayaking accident in 1993. The owner of the activity centre, Peter Kite, was convicted of corporate manslaughter over the deaths and jailed for three years, with his sentence cut to
two years on appeal.

But large companies guilty in the eyes of the public often eluded punishment because identification of the controlling mind was more difficult. The Herald of Free Enterprise case in 1987 set the precedent for corporate manslaughter being legally admissible in English courts,
but this was overturned by the case against Great Western Trains following the Southall rail crash collapse.

When the MS Herald of Free Enterprise capsized in 1987, 193 people died through numerous counts of negligence as a result of the owners P&O being "infected with the disease of sloppiness" from the top to bottom. As to whether one senior manager could be said to have been reckless, at first the judge ruled against this. But on appeal, although the jury acquitted the company and the five most senior individual defendants, a charge of corporate manslaughter had been made possible with the revival of gross negligence as a mens rea for manslaughter.

But the case against Great Western Trains in 1997, following the crash in which seven people were killed and 139 were injured, was dismissed since GWT was a company and so a controlling mind could not be identified.

With the introduction of the new act, The Health and Safety Executive has published guidance for employers around compliance with the legislation to ensure
that risks to staff health and safety are properly controlled. Measures include:

• carrying out a risk assessment and taking necessary precautions
• explaining in plain English to staff how risks will be controlled and who is responsible for this
• appointing health and safety representatives
• providing free health and safety training appropriate to the job in question
• providing adequate first-aid facilities
• providing toilets, washing facilities and drinking water
• having insurance that covers staff in the event of injury or illness
• providing free suitable protective clothing and equipment

Particularly at risk are lone workers. Many often face violence and aggression from members of the public, as well as occupational risks such as slips, trips, falls and electrocution with, in the worst case scenario, no support from a nearby colleague. While some lone workers are low risk, such as those who work in a remote office, many can be classed as medium risk, such as maintenance operatives, cleaners or surveyors or classed as high-risk such as security guards, lift engineers, air-conditioning engineers or people who deal directly with the public.

Organisations with lone workers have traditionally managed their safety with white board or buddy systems. A white board placed in a prominent position in the office records the names, locations, schedule and mobile numbers of all lone workers and the lone worker checks back into the office and has their whereabouts updated on the board. With a buddy system, the worker tells their assigned buddy where they're going to be and then updates them on their status.

Many organisations are also turning to technology to support their lone working staff. For low- to medium-risk lone workers, a simple solution set up on a standard mobile phone linking through to an alarm receiving centre will provide an increased level of safety. For lone workers who routinely face higher levels of risk, enhanced services can be combined with dedicated devices or a smartphone app that can include the ability to set up automatic welfare checks, giving the user greater flexibility and protection.

Also, specialised phones, which are often rugged to cope with extreme environments, designed in conjunction with the security industry and emergency services have dedicated emergency keys or specialist safety sensors which detect falls, impacts, extended
lack of movement or loss of vertical position, and raise the red alarm even if the worker can't press any buttons.

There are plenty of options for organisations looking to protect their employees. The challenge is ensuring that the organisation has a strong health and safety culture in the first place.

Vince Galvin is vice-president sales, Northern Europe at Sonim Technologies