On April 6, 2008, the Corporate Manslaughter Act will introduce a new offence which will for the first time find companies & organisations guilty of corporate manslaughter if the way in which it manages or organises its activities cause a persons death and amounts to a gross breach of duty of care.
A breach of duty of care by an organisation is a 'gross' breach if the conduct alleged to amount to a breach of that duty falls far below what can reasonably be expected of the organisation in the circumstances.
At present the law links a company's guilt to the gross negligence of an individual who is said to be the embodiment of the company.
It has been successful in prosecuting smaller companies where the director and company are essentially seen as one but it has proved to be very difficult when trying to prosecute larger organisations.
The new offence has been structured so that it can be more applicable to larger organisations where often the business structure is complicated; the purpose will be to focus on the failures of management rather than individuals on their health and safety policies and procedures.
So rather than being contingent on the guilt of one or more individuals, liability for the new offence depends on a finding of gross negligence in the way in which the activities of the organisation are run.
The key points of the new offence are that it:
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· applies to most employers
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· turns on the failures of an organisation rather than the individual 'controlling' mind
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· nevertheless requires there to have been failures by an organisation's senior management
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· does not create any new duties for employers or individuals; and
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· does not abolish the application of the individual offence of manslaughter to directors and workers
Senior management is defined in the Act as those persons who play a significant role in the decision-making process about how the company's activities are managed and organised.
Each case will be different depending on the size and structure of the business involved.
The new act is about corporate responsibility and liability, and it is not concerned with increasing the liability of individuals, who can already be held to account through existing health and safety legislation and the common law offence of gross negligence manslaughter.
Although the new offence is not part of the health and safety law, it will introduce an important new element in the corporate management of health and safety.
The Act's purpose is to create an effective method of prosecuting companies where management failure has resulted in death.
Penalties include an unlimited fine, remedial orders and publicity orders.
This is in all hope to get companies that consistently fail to meet proper standards to improve and provide their employees with safer working environments.
With this new offence coming into action fast it is vital that senior management make it their top priority to revisit and implement relevant health and safety policies and procedures to compliment their organisational activities and to ensure that they do not breach their duty of care.
For more information on health and safety policies and procedures or for advice and guidance on any HR dilemma that is concerning you, contact Jenny at
jenny@hradvantage.co.uk or call her on 01494 451681.
