The Corporate Manslaughter and Corporate Homicide Act 2007 (‘the Act’), which came into force in April 2008, was a landmark in law which for the first time allowed the authorities to prosecute organisations where a corporate management failing has led to the death of an individual, resulting from a breach of Health and Safety at Work.
How the courts give effect to the Act
The new law means that the courts will look at the health and safety management systems and practices across the organisation, including its subsidiaries, to establish if these are adequate. This was the case in CAV Aerospace Ltd, where the parent company was prosecuted for an incident which led to the death of an employee in the premises of a subsidiary company and the courts, in arriving at their decision, found that all operational decisions regarding purchasing, delivery and storage of materials fell within the responsibility of the parent company.
How can you protect your business?
The purpose of this legislation is to ensure that all organisations had effective health and safety measures in place and that they followed the mandatory guidelines. It is important to remember that being a director or trustee of an organisation means you are ultimately responsible for ensuring that employees are reasonably safeguarded from injury at work. The same can be said about outside contract workers, customers and other outsiders visiting the workplace.
Recommended steps that organisations should take to minimise the risk of prosecution
- Ensure that a properly documented comprehensive health and safety audit is carried out and that compulsory guidelines are in place and strictly adhered to by all employees, contract workers, customers and other outsiders who visit the workplace or have dealings with it.
- Ensure that your health and safety policy sets out clearly, in writing, the health and safety responsibilities at every level of the organisation.
- Communicate this information to the workforce and different levels of management. This is very important because of the ‘senior management’ test in the Act.
- The directors must carefully review the company structure and identify who the senior managers are and what their responsibilities are with regard to safety. Delegation is not the answer.
- Whilst a properly trained and qualified person must be appointed with sufficient authority and a budget to be overall in charge of health and safety, simply making such an appointment will not absolve board members of their responsibility for ensuring that it is properly managed.
- Record keeping is very important to demonstrate an efficient and effective safety management system which must be reviewed periodically. Any changes in policies or procedures must be documented and communicated effectively. All accident reports and near misses and regular meeting minutes must be available for inspection.
- Regular health and safety training should be offered and records should be available to prove to an inspecting authority that employees have undergone adequate training. In some cases it should be made mandatory.
- Develop a culture that does not find faults or mistakes with people, so that people will be open and honest about anything they did that was wrong and lessons can be learned from them.
- Involve employees as they are likely to have a greater awareness about the potential risks faced at the workplace, listen to their concerns and act on them wherever possible.
- It is worth to have an accident management plan in place so that staff who have been trained to deal with investigating authorities know who to take advice from at an early stage to manage any issues that may arise with regard to business reputation.
In conclusion, it can be said that any size of organisation can be prosecuted under the Corporate Manslaughter and Corporate Homicide Act, and prosecutions will be of the corporate body and not the individual. Organisations found guilty of corporate manslaughter face unlimited fines. Individual directors can also be prosecuted under Health and Safety legislation if that director consented, connived or neglected to act upon any matter which constitutes a Health and Safety Act offence. There have been many prosecutions leading to substantial fines and custodial sentences.
However, the company and directors may be able to avoid liability if it can be proved that the actions and/or omissions of the organisation did not fall below that which could reasonably be expected of the organisations in the circumstances.
Our team at London Registrars possess the necessary expertise in advising clients of their duties and liabilities as directors in these matters. Please feel free to get in touch with us to discuss any aspect of the issues raised in this article in more detail.