Corporate Manslaughter: Less is not more

by Jodie Sinclair, Employment Law Partner, Bevan Brittan LLP

Whilst prevention really is better than cure, I advise my clients in the hotels and leisure sector that it is not enough to have a standard health and safety policy in place to ‘band aid’ over any work-related deaths.

If your organisation wants to avoid the criminal conviction of manslaughter under the Corporate Manslaughter and Corporate Homicide Act 2007 you need to act now. In force since 6 April 2008, the Act takes no hostages when it comes to penalties. If you get it wrong, in addition to a huge impact on reputation, you could find yourself facing unlimited fines, remedial orders to put right the offending management practice and brand meltdown if the court orders publicity of such convictions.

On the same day as the Act received Royal Assent – 26 July 2007 – the Health and Safety Commission announced that 241 workers were killed in the United Kingdom during 2006/07, an increase on the previous year’s total of 217. There’s obviously still a lot of work to be done in order to prevent workplace incidents and fatalities.

What you need to know
The new legislation is aimed at making it easier to prosecute larger companies. This is achieved by providing a more effective means of accountability by allowing a prosecution based upon the collective failures of senior managers rather than the gross negligence of a “controlling mind” of the organisation. All companies and other corporate bodies operating in the United Kingdom are caught by the Act, whether incorporated in the United Kingdom or abroad. How you manage your business plays a crucial part in how an organisation can get convicted. The court will ask to what extent have you failed to comply with existing health and safety legislation, how serious is that failure, and how much risk did it pose to the deceased. Juries can consider factors such as attitudes, policies, systems or accepted practices in your business that were likely to have encouraged a management failure. A proper audit trail and a focused and implemented training programme for your organisation, particularly senior managers, will be pivotal for a robust defence to any such prosecutions.

Who is liable?
Whilst the Act provides that there is no individual liability, senior managers can nevertheless be exposed to liability under the common law of gross negligence manslaughter or under the health and safety offences. From January 2009, there will be far more health and safety offences, punishable by imprisonment, than ever before. Many high profile health and safety cases in previous years have highlighted significant and damaging failures of leadership and at the very least you should be aware and following the principles of the guidance produced by the Institute of Directors and Health and Safety Commission on leading health and safety at work.

How may you be liable?
Putting this into context, imagine that a fire breaks out at a hotel due to an employee leaving a lit cigarette in one of the hotel rooms. The fire spreads quickly due to cardboard boxes being stacked up in the corridor alongside two abandoned linen trolleys. The fire alarm and sprinkler system are faulty and do not activate. The manager in charge of organising fire drills has failed to carry out the last three due to being busy. Management have always turned a blind eye to employees smoking in the bedrooms. The consequences are that a hotel guest dies from smoke inhalation and an employee is injured when trying to escape. In this situation there would be both civil and criminal liability and the fine would be considerable. If fines previously imposed are anything to go by, those imposed under the Act will be pretty substantial. For example, in 1999, the Transco gas explosion killed four people in their own homes. The company was convicted of corporate manslaughter and incurred a fine of £15 million.

Practical tips
The Act is likely to result in increased investigations into allegations of corporate manslaughter. So how can you weather this uncertainty?
Strong and active leadership from the top of the organisation
Staff engagement in owning and implementing the health and safety agenda – DON’T PAY LIP SERVICE!
Risk assessment, monitoring and reporting procedures in place
Regularly review your company’s health and safety processes and procedures
Consider your company’s culture – is a blind eye turned to breaches of health and safety?

The potential ramifications of getting it wrong are so significant that you cannot afford to ignore your obligations.