Senior managers find themselves in the dock over deaths at work.

The Corporate Manslaughter and Corporate Homicide Act 2007 has now been in force for five years. The legislation targets the behaviour of companies but, in the prosecutions brought to date, senior management have found themselves in the dock alongside their companies.

Law

The Act is designed to establish corporate criminal liability where it can be shown that the way an organisation’s activities were managed or organised by its senior management was a substantial element in causing a person’s death, amounting to a gross breach of a duty of care owed to that person. Senior management means those who play a significant role in making decisions about, or managing the whole or a substantial part of, the organisation’s activity.

Cases

As is common with new legislation, cases brought under the Act have been relatively slow in coming, but they are certainly beginning to gather pace now. The first case, Cotswold Geotechnical Holding, involving a death in 2008, resulted in a conviction following trial in 2011. Since then two more companies, JMW Farms and Lion Steel, have been convicted. But there is evidence of an increase in cases ­- five new cases have been charged since July last year. The Crown Prosecution Service (CPS) is currently reviewing a number of new cases and it is inevitable that further companies will be charged this year.

Plea bargain

So far, the cases have involved companies sharing a certain profile: they are all relatively small owner-managed businesses. These are just the sort of companies that can struggle, in the current financial environment, to keep up with all the HR obligations put on them.There is a further similarity. In five of the cases, as well as the charge of corporate manslaughter, senior managers of the companies have been charged personally either with gross negligence manslaughter or health and safety offences – both of which can attract custodial sentences. In the case of Lion Steel, a last-minute guilty plea by the company to the corporate manslaughter charge was agreed as part of a deal to remove the substantial risk that one of the directors might face prison if convicted himself of manslaughter.

Liability

Historically, prosecutions of senior managers for either gross negligence manslaughter or health and safety have been few and far between, but this may no longer be the case. Without the Act, it is most unlikely that Lion Steel would have been prosecuted for corporate manslaughter or, significantly, that its directors would have faced prosecution for gross negligence manslaughter. In looking at the company’s potential manslaughter liability, the police and CPS are invariably drawn to consider the position of the individuals at a senior level in the company who may have been at fault, because the Act requires this. It is, therefore, on their actions that the spotlight will fall.

Gross negligence

It is inevitable that as the number of corporate manslaughter prosecutions increases, so too will the number of prosecutions of senior managers for gross negligence manslaughter and health and safety offences. For the time being, it appears that cases will be limited to smaller companies, but, as the police and CPS gain confidence in using this legislation, larger companies are likely to be targeted.

Insurance

This means it is essential that senior managers understand those aspects of their roles that may relate to health and safety and may, therefore, expose them to personal criminal liability. They must ensure their organisations resource these roles adequately and that, should the worst happen and a fatal accident occurs, there is appropriate legal expense insurance or equivalent funding to provide for their representation. HR departments in companies of all sizes are likely to come under increasing pressure to ensure these issues are properly dealt with, and they will need to keep up to date with developments in this area as the Act’s consequences become clear.

Jonathan Grimes, Partner and health & safety law expert, and Richard Fox, Partner and Head of Employment at Kingsley Napley LLP

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