corporate manslaughter and employees – what you need to know

The Corporate Manslaughter Act 2007 (“the Act”) will come into force on 6 April 2008. The Act is designed to make it easier for companies and other organisations to be successfully prosecuted in relation to deaths which are a result of their negligence. The Act extends to cover not only employees but anyone that may be affected by a company’s actions and operations.

In order to be guilty of an offence:

• a death must have been caused as a result of the way in which the organisation’s activities are managed or organised by “senior management”; and
  
  
• this must amount to a gross breach of the relevant duty of care owed to the deceased.

A court will be obliged to consider whether the company failed to comply with health and safety legislation, how serious that breach was and how much of a risk of death it posed. In deciding this, a jury can look at the effect that attitudes, policies and practices within the company allowed the failure to occur.

As a minimum, “senior management” will include the board of a company and any executive committees immediately below board level.

One penalty that will be imposed on organisations found guilty of corporate manslaughter is a fine. There is no maximum limit that the fine may reach and indications are that this will vary depending on aggravating factors. A guideline of between 2.5% and 10% of an organisation’s average annual turnover has been put forward. Other sanctions are available to the courts, including remedial orders to correct defects in health and safety systems.

The fact that an employer owes a duty of care to its employees has been a recognised part of English law for many years, there is therefore no question that employee deaths will be covered by the Act.

Protecting your business – how this affects you

Now is a good time for employers to review their employment policies and procedures and ensure that they are correctly and consistently enforced in all cases. This is particularly important with regards to health and safety issues, where the senior management of your organisation should be seen to be doing all that is possible to ensure the safety of employees, particularly by adopting a stringent stance on the application and enforcement of disciplinary procedures for breaches of health and safety policies.

It is therefore of even greater importance for employers to keep grievance and disciplinary policies up to date and to ensure that they cover breaches of the employer’s health and safety policy. It is also a good time to update health and safety policies and to put in place a “whistleblowing” policy which makes clear that employees who raise health and safety concerns will not suffer detriment as a result.

Employers should not be reluctant to impose serious sanctions on employees who put people’s lives at risk, including dismissal, where the risk is real and/or particularly serious (for example, large factories containing flammable material). Provided that the sanctions are imposed with an even hand and they are consistent with the employer’s procedures, even serious consequences for employees are unlikely to be seen to be unreasonable. Employment Tribunals have, to date, been reluctant to uphold dismissals on the grounds of health and safety as fair but, increasingly, they will have to recognise that while the loss of a person’s livelihood is a serious matter, the potential risks to human life must outweigh these considerations where the risk of death is real.