Briefing notes for HR professionals looking to keep on the right side of the law.
The Government is currently considering responses to the consultation document it published earlier this year on a draft Corporate Manslaughter Bill. At this stage, it is not clear when the Bill will become law.
However, it is likely that there will be legislation introduced in the near future that will impose criminal sanctions on corporate bodies that cause a person’s death as a result of a gross breach of that organisation’s duty of care towards the individual concerned.
At the moment, issues of health and safety (including liability for deaths) as far as corporations are concerned, are governed by the Health and Safety at Work Act 1974 (HSWA). Although many would argue that there has been a whole raft of legislation concerning health and safety issues since the introduction of the HSWA, it is still the case that the law in this area is governed by that Act.
A significant number of critics claim that the HSWA has failed to deliver management commitment to health and safety and the prioritisation of health and safety issues. There has therefore been a general drive both within the UK and the European Union for corporations and their management to take greater responsibility and to be more accountable for the impact of actions that their organisations may take which impact the health and safety of others.
It is already the case that the HSWA provides that where an offence under a relevant statutory health and safety requirement is proved to have been committed with the consent or due to the neglect of an officer of the corporation, that corporation and the individual concerned can face criminal sanctions.
It is also possible to prosecute individuals and corporations in such circumstances for the offence of gross negligence manslaughter. In circumstances where it has been possible to prove a direct link between the action of an officer of a corporation and the incident (i.e. the incident is a direct result of a conscious decision of the officer concerned in full knowledge of the risks that death or injury may occur), such officers have been fined or jailed for their actions.
Despite the fact that it is currently possible to impose criminal convictions, fines and jail sentences against corporations and their officers, there have been very few convictions of individuals under the HSWA or for gross negligence manslaughter resulting from fatal incidents.
The reason for the low conviction rate has been because it has not been possible to identify individuals who could be said to be responsible for committing the crime concerned (i.e. that the individual was a ‘guiding mind’ within the company and was clearly responsible for the incident that caused a death).
More often than not, the fault has been found to rest not with a specific individual but with the entire organisation in the sense that its policies and procedures did not ensure the preventative measures necessary to ensure safety. Only 11 company directors have ever been convicted following work related deaths and, of those, only five have been imprisoned.
The Corporate Manslaughter Bill provides, therefore, for a new offence of corporate manslaughter. An organisation will be guilty of this offence if the way in which its senior managers manage or organise its activities causes a person’s death and that is deemed a gross breach of the duty of care the organisation owes that person as their employer or as the occupier of a building or in supplying goods or services or performing commercial activities.
The standards against which the organisation’s conduct will be assessed will be those contained in existing health and safety legislation and approved relevant codes of practice. The penalty for an offence will be an unlimited fine.
Individuals will not themselves be liable for prosecution for an offence of corporate manslaughter (although they will remain liable for prosecution for existing offences under the HSWA or for gross negligence manslaughter where they are personally to blame for an incident). Only corporations will be liable to prosecution. The offence is not likely to apply to unincorporated associations (i.e. partnerships or trade unions).
Nor will parent corporations be liable for the failings of their subsidiaries. Companies within a group will only be liable for gross failures of their own management which cause death.
A gross breach of a duty of care will arise when an action in relation to that duty falls “far below what can reasonably be expected of the organisation in the circumstances”.
In reaching a finding, a jury is required to consider whether the organisation concerned failed to comply with the relevant health and safety legislation, the extent of the failure and whether or not the senior managers of the organisation knew of the failing, were aware of the risk of death or serious injury and sought to profit from the failure.
For a person to be a senior manager for these purposes, they must not only play a role in managing or making management decisions but must have a significant role within the organisation as a whole. This means that senior managers in small organisations are likely to be limited to the board of directors, whereas in larger organisations they may include departmental managers or line managers who have real decision making power (but who are not directors).
Assuming most HR directors or managers are charged with the responsibility of overseeing health and safety issues in the workplace, the Corporate Manslaughter Bill (if it becomes law) should prompt significant efforts on their part to ensure that the following steps are taken:
- A director should be charged with the responsibility for overseeing health and safety compliance and, in larger organisations, it would be worth creating roles whose specific responsibilities are to manage the company’s health and safety compliance.
- Review all policies (not least the company’s health and safety policy), procedures, contracts, working practices, etc. to ensure compliance with the relevant health and safety requirements.
- Update disciplinary procedures to ensure that serious breaches of Health and Safety guidelines are deemed to be gross misconduct;
- Arrange regular health and safety audits.
- Arrange training for line managers on relevant health and safety issues.
- Ensure health and safety is always on the agenda of management meetings.
The bottom line is that, should the management of a company fail to ensure their organisation complies as far as possible with relevant health and safety requirements and that failure results in a death, the company may be liable for prosecution for corporate manslaughter under the Corporate Manslaughter Bill and individual senior managers may face prosecution under the HSWA.
Situations such as the failure so far to prosecute anyone for the deaths resulting from the Hatfield rail disaster will be far less likely should the Bill become law.
Mark Hunt is Partner and Head of Reed Smith’s UK Employment Group.