Lawyers are advising organisations to take immediate steps to put their health and safety practices and procedures in order in light of the new Corporate Manslaughter & Corporate Homicide Act 2007, the main provisions of which will come into effect from 6 April next year.

The new Act is set to make prosecutions for health and safety failures more straightforward.
“The Act was brought in to address the problem of securing convictions against larger organisations where it has previously proved difficult to successfully secure a prosecution for corporate manslaughter without proving the liability of an individual or individuals within that organisation,” said Philip Collins, health and safety specialist at Lemon & Co Solicitors.

He added that “all businesses need to be aware of the implications of the Act, as all organisations, large or small, will still be covered and liable to prosecution.”

Prepared to act
However, recent research by publisher Croner suggests that 51% of businesses are not prepared for the Act and, more worryingly, 48% believe that it is not relevant to them.

“Now, companies and other organisations ­ including government departments which have had their Crown immunity lifted for the first time ­ face unlimited fines if they are found to have caused death due to gross corporate failures in health and safety,” said Ron Reid, partner and regulatory law specialist at solicitors Shoosmiths.

The new Act creates the offence of corporate manslaughter which will be committed when an organisation which owes a duty of reasonable care for a person’s safety is found to be in breach of that and caused their death as the result of the way its activities have been managed or organised.

Individuals cannot be prosecuted under the Act. The legislation states that “an individual cannot be guilty of aiding, abetting, counselling or procuring the commission of an offence of corporate manslaughter”, nor can an individual “be guilty of aiding, abetting, counselling or procuring, or being a part in the commission of an offence of corporate homicide.”

Reid said that “while this new legislation still doesn’t provide for personal liability for individual directors and managers, they will remain vulnerable because the law relating to manslaughter by gross negligence will remain in force.”

Duty of care
In future, successful prosecutions will be achieved when it shows that the failure within the organisation came from the way in which its activities are managed or organised, that this caused a person’s death and amounts to a gross breach of the company’s duty of care to the deceased.

Sally Morris, partner and head of employment law at mfg Solicitors, says that the law will make companies ­ not individual directors ­ liable for any deaths due to a general breach of the duty of care by the firm. Companies that have good safety policies have nothing to fear from the new Act, even if someone dies in an awful accident. Only those that can be shown beyond reasonable doubt to have been homicidally reckless about risk and the failure caused substantially by “senior management” ­ either individually or collectively.

Senior managers are defined as people who play a significant role in the management of the whole or a substantial part of the organisation’s activities. So the focus has moved from the culpable individual to the aggregation of senior managerial responsibility.

Up to the role
Morris says that the immediate effect for employers is most likely that there is a review of job titles to ensure the employer accurately reflects the seniority of the role.
“Directors should not take on health and safety management responsibilities that they are not competent to undertake,” said Morris.

“Any person that is given health and safety responsibilities will need to be competent and have sufficient authority to ensure that risks are properly managed,” she said. “More then ever, the board of directors will need to have a role in promoting health and safety management because of the need to demonstrate that there existed a health and safety compliant culture.”

The penalty for being found guilty of an offence under the Act is an unlimited fine. Courts also have the power to remedy any management failure, health and safety policy and system or practice that lead to a death.

Morris says that it is hoped that the effect of a possible conviction, and resulting penalties, will be a sufficient incentive for companies and employers to provide their employees with safer working environments.

Act now
Commercial law firm Bond Pearce says that in preparation for the Act a business should:
• Obtain and consider all health and safety guidance applicable to their business;
• Consider industry standards – what benchmarks is the company working to?
• Ensure all risk assessments are up to date and reviewed;
• Implement a consistent and documented enforcement regime for health and safety issues;
• Consider what element of the company’s budget is spent on health and safety;
• Review the company’s policies and near miss reports and procedures;
• Review the company’s policies and assessments in relation to vehicles and work-related driving;
• Consider the company’s hierarchy and determine who would be considered senior management for the purposes of the Act;
• Review the company’s safety culture – regardless of documents, policies and procedures;
• Are employees able to report health and safety concerns confidentially?
• Check the extent of the company’s insurance cover for criminal costs. Most policies only cover defence costs to the Magistrates Court; and
• Check the extent of any insurance policies in place covering criminal costs for directors or officers of the company.

Useful links
www.lemon-co.co.uk
www.bondpearce.com
www.shoosmiths.com
www.mfgsolicitors.com
www.tuc.org.uk
www.corporateaccountability.org