This guide is based on UK law as at 1st February 2010, unless otherwise stated. It is part of a series of guides on Health and safety and corporate manslaughter.
At its worst, a breach of the health and safety rules has tragic consequences, leading to the loss of life. Historically, though, it’s been hard to convict a company of corporate manslaughter (or corporate homicide in Scotland); the Herald of Free Enterprise disaster, the King’s Cross fire and various rail crashes have all highlighted the problems.
The prosecution had to prove two things: first, that a single individual in the company was guilty of gross negligence manslaughter; second, that this individual was the ‘controlling mind’ of the company. If there was not enough evidence to convict an individual, there could be no prosecution of the company.
Larger companies therefore frequently escaped conviction as fatal accidents are often the result of failures by a number of people over a period of time. The larger the company, the greater the number; and the less likely the chance of proving that a single person, representing the company’s controlling mind, had been grossly negligent.
After much delay, the law in this area was reformed by the Corporate Manslaughter and Corporate Homicide Act 2007, which came into force on 6 April 2008. A year later, the first prosecution of a company was brought under the new law.
Under the 2007 Act, the focus shifts from an individual failing to a broader failure of management, determined by a threefold test. An offence is committed if the way an organisation manages or organises its activities:
- caused a person’s death;
- amounted to a gross breach of a relevant duty of care owed by the organisation to the victim; and
- senior management played a substantial part in the breach.
The old law only ever caught small, one-man companies; the new law makes it much more likely that larger organisations with more widespread systems of management will be answerable if a failure in their management or organisation causes a death. (Network Rail and Balfour Beatty, for example, would certainly have been at greater risk if they had been prosecuted for corporate manslaughter today – see the summary of The Hatfield rail crash and Balfour Beatty in our guide, Health and safety: An introduction.) But the requirement for a gross breach of duty provides a safeguard: if a company has robust systems for managing risks to health and safety and complies with the legislation described in the same guide, a prosecution for corporate manslaughter remains unlikely.
If convicted, the organisation will be liable to an unlimited fine (see our guide, Sentencing guidelines for health and safety offences: Level of fines.) In addition, there may be either or both of:
- a remedial order requiring the organisation to take steps, within a specified time, to remedy the breach and any matter resulting from it that was a cause of death and, possibly, to change policies, systems or practices;
- a publicity order requiring the organisation to publicise, in a specified manner, the fact it has been convicted of corporate manslaughter together with particulars of the offence, the amount of any fine and the terms of any remedial order made.
The latter is ‘naming and shaming’ at its most potent.
Leadership and proper engagement by directors and senior management in both managing health and safety risks and ensuring compliance with health and safety laws will be key in preventing or defending an allegation of corporate manslaughter.
See directly below for further points on the corporate manslaughter offence.
Corporate Manslaughter and Corporate Homicide Act 2007
The Act applies not only to companies, but also to other organisations, including partnerships (where they are employers), local government authorities, NHS Trusts and certain central government departments.
The injury or harm that caused the death must have happened in the United Kingdom. So foreign companies operating in the United Kingdom are caught where the harm occurs here, but the Act does not extend to UK companies operating abroad.
The organisation must have owed a relevant duty of care to the victim. Such a duty will always exist between an employer and its employees, and between a business and its customers or anyone else who uses its goods and services. There is also a duty of care between an occupier of premises and lawful or unlawful visitors to those premises. Indeed, a business will have a duty of care to anyone who is affected by its commercial activities, such as the carrying on of any construction or maintenance work or the use of plant or vehicles.
Senior management are those who play a significant role in deciding how the whole (or a substantial part) of an organisation’s activities are managed or organised; also caught are those who actually manage or organise those activities. It is the collective actions and inactions of these board members and managers that will be subject to scrutiny, not the failings of relatively junior staff on the ground.
The management failure has to be bad enough to amount to a gross breach of duty. That means the conduct has to fall far below what could reasonably be expected in the circumstances. In deciding this, a number of factors will be looked at:
- Was there a failure to comply with relevant health and safety legislation?
- How serious was the non-compliance?
- How great was the risk of death caused by the breach?
- What was the organisation’s safety culture – to what extent did attitudes, policies, systems or accepted practices encourage or tolerate the breach?
- What industry guidance was there, or codes of practice or similar publications issued by bodies such as the Health and Safety Executive, and were they followed?
The gross breach does not have to have been the sole cause of the death but it must have made more than a minimal contribution to it; and senior management must have played a substantial part in that breach.
A prosecution can only be brought with the consent of the Director of Public Prosecutions, so private prosecutions will not be possible.
The offence applies only to organisations. There is no separate offence under the Act for individuals, such as the senior managers whose failures result in the prosecution (though they can still face liability for general health and safety offences, as described in: A director's personal liability, an OUT-LAW guide.) This has been a controversial point, with some arguing that the necessary change in culture will only come about when directors face a real threat of jail. One trade union leader has been quoted as saying: "Directors in the dock is what we want."