New Penalties For Corporate Manslaughter
The Corporate Manslaughter Act affects everyone with responsibility for the health and safety of employees.
The Corporate Manslaughter and Corporate Homicide Act 2007 came into force on 6th April 2008 and is one of the biggest changes to health and safety law since the HSWA (Health and Safety at Work Act). It affects everyone with responsibility for the health and safety of employees by making it easier to prosecute organisations where their gross negligence leads to the death of employees or others.
The recent publication of new consultation guidelines from the Sentencing Guidelines Council means that a successful prosecution for health and safety offences resulting in death could result in stringent penalties running into millions, rather than thousands, of pounds.
Employment law expert, Paul Verrico of Eversheds LLP explains:
“Currently, if an organisation is found to have breached health and safety law and killed someone, the normal ball park for a fine is between £100,000 and £250,000. The guideline proposals are likely to increase the magnitude of a fine in similar circumstances by a factor of ten if the company is instead charged with Corporate Manslaughter.”
The consultation guidelines state that for the offence of Corporate Manslaughter, the appropriate fine will “seldom be less than £500,000 and may be measured in millions of pounds”.
The consultation document also puts forward criteria for the Courts to assess, including:
- the size of the fine
- how foreseeable was serious injury
- how far short of the applicable standard did the defendant fall
- how far up the organisation the breach went
Other factors that may aggravate the offence are:
- if more than one person died
- failures to heed warnings
- cost-cutting at the expense of safety
In addition to a fine, a company found guilty could be subject to a Publicity Order. This is intended to act as both a deterrent and a punishment, given that the effect on the reputation of an organisation could be so damaging it could threaten its continued operation.
The Institute of Directors (IoD) and HSE have published a guide that lists the essential principles to underpin good practice in health and safety, such as:
- strong and active leadership from the top
- visible, active commitment from the board
- establishing effective ‘downward’ communication systems and management structures
- engaging the workforce in the promotion and achievement of safe and healthy conditions
- providing high quality training
- identifying and managing health and safety risks
- monitoring, reporting and reviewing performance
Other good practice tips include:
- health and safety issues should appear regularly on the agenda for board meetings
- either the chief executive or a specific board member should be named as a health and safety ‘champion’
Aftermath of a fatality
IOSH has provided guidance on what employers and managers should do in the aftermath of a serious or fatal accident, outlining the following as best practice when holding an investigation:
- Describe the events that led to the hazardous event and its immediate consequences. For serious events where the report is likely to be used in future by people who don’t have a good knowledge of your workplace, it’s important to include clear photographs and diagrams. You should also attach copies of relevant documents and keep the originals in case of future legal actions
- Make sure that names, dates and measurements (in metric) are recorded accurately
- Make a clear distinction between what is established as fact and what is opinion or hearsay
- Identify the immediate and root causes of the hazardous event
- Comment on any contradictory or missing evidence and how this affects the identification of root causes
- Give clear, prioritised, cost effective and SMARTT (specific, measurable, agreed, realistic, time-bound and tracked) recommendations to address the identified causes and prevent the event happening again
IOD / HSE: Leading Health and Safety at Work –
Workplace Law Group’s Corporate Manslaughter
and Corporate Homicide Act: