Get out of jail card and Corporate Manslaughter or corporate man’s laughter? After four years of fudging, stalling and numerous consultations, let alone redrafting – a law on corporate manslaughter has at last arrived.
The Bill, currently before Parliament, seeks to create a new offence of corporate manslaughter, providing a more effective sanction for holding companies and other organisations to account when gross negligence in their senior management has had fatal consequences. According to Government this will improve the effectiveness of the law by enabling a wider range of senior management conduct to be taken into account when prosecuting an organisation for manslaughter.
This would not introduce new standards: organisations taking their current health and safety obligations have nothing to fear. The Bill is intended to target corporate liability, as opposed to the responsibility of individual directors or others. But individual prosecutions will continue to be possible for existing offences.
Moreover, the Bill would apply to Government Departments and other Crown bodies, as well as industry, where both are engaged in similar activities. But it would not apply to certain core public functions or decisions relating to matters of public policy, that are subject to existing lines of public accountability.
Prior to the Bill, and thus the current legal position, is that a conviction for corporate manslaughter is obtainable only where a senior manager in a company (the ‘controlling mind’) is shown to have been grossly negligent and consequentially responsible for the fatal accident.
This is very difficult to prove where managerial responsibilities are shared. For example, Court of Appeal in 2000 confirmed that a corporation cannot be convicted unless there is evidence which establishes the guilt of an identified individual for the crime (A-G’s Reference No 2 of 1999 [2000] IRLR 417).
This issue was taken up in a consultation document issued in May 2000, the Government proposed the introduction of a new offence of corporate killing and two offences of reckless killing and killing by gross carelessness.
The offence of corporate killing would arise where an undertaking’s management failure causes death and the undertaking’s conduct fell far below what could reasonably be expected in the circumstances. There will be a ‘management failure’ if the way in which the undertaking’s activities are managed or organised fails to ensure the health and safety of persons employed in or affected by those activities.
No guidance has been given as to what ‘falling far below what could reasonably be expected’ means. Further, the Government has expressed concern that companies will devolve the riskier parts of their undertakings to subsidiary companies to enable holding companies to escape any liability.
To that end, HR practitioners need to work in harmony with their safety personnel, or the absence of such, take on the role, reporting directly to the Board. Once again, serious sanctions prevail for non-compliance.
Most MDs dislike attending tribunals, which are supposedly informal. Instead, they will be summoned to Court and if found guilty, be imprisoned, at least be subject to a large fine.
If imprisonment does become a reality, then the laughter will be eradicated. If not, and it is up to the juries and judiciary, then corporate manslaughter may become corporate man’s laughter. However, seeking reassurance HR practitioners should take note of the failed Corporate Responsibility Bill (Bill 129, 19 June 2003) which sought to introduce that companies publish reports on environmental, social and economic and financial matters, including health and safety matters.
Such a proposal would have impacted further upon consultation on health and safety issues and make Directors more liable for any ‘adverse social, environmental or economic impacts of their operations which arise from negligence [and] wilful misconduct relating to their duties and/or disclosure of information required by the Act’. Watch this space … once the Bill is introduced. It is better to be prepared in any event, otherwise get your get out of jail card ready!
Dr Stephen Hardy is Senior Lecturer in Law, researching in Employment and EU law at the University of Manchester.
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