Corporate Manslaughter: What Every MD and Senior Manager Needs to Know

Thoughts from our Expert Witness, Steve Pope, who recently advised the Police and CPS on a Corporate Manslaughter consideration.

Prosecution Consequences:
Did you know following an initial investigation the first consideration after any fatal work place accident is Manslaughter? The consideration will be either a charge of gross negligence manslaughter against an individual, or, as Corporate Manslaughter against the employer or both.

From November of this year, individuals convicted of gross negligence manslaughter will almost invariably receive a prison sentence. Under the new guidelines, if the negligent conduct persisted for a long period of time it is recommended that a sentence between 6 and 12 years. If the offender’s culpability is deemed to be a lapse in otherwise satisfactory standards of care, the jail term will be in the range of 1 to 4 years.

Corporate Manslaughter penalties are significant; they are likely to be twice that of those imposed on the organisation if it were to be convicted under the Health and Safety at Work Act. The fines are unlimited, and the court can also disqualify directors. The court can also make publicity orders as well as remedial and compensation orders although to date these have been invoked very rarely.

Prosecution Process:
The number of cases taken is still low compared with the number of fatal accidents but is accelerating. From single cases in 2011 and 2012 there have been a total of 30 cases with 25 companies being convicted. Bearing in mind that it can take five years to bring a case to court there are many more in the pipeline.

Following any workplace fatal accident, the initial investigation will be led by the police with the assistance of the enforcing authority, typically the HSE or Local Authority. Once the facts are established the police/enforcing authority may then place evidence before the Crown Prosecution Service (CPS) for consideration of Corporate Manslaughter. If the CPS decides that a prosecution for Corporate Manslaughter is not warranted the case reverts to the enforcing authority who may then choose to prosecute under the Health and Safety at Work Act.

For a conviction, the prosecution must prove beyond reasonable doubt that the way senior management of the organisation managed or organised its activities causes a person’s death which in turn amounted to a gross breach of a relevant duty of care.

The judge determines whether the organisation owes a duty of care while the jury will decide whether the way the organisation managed its activities was grossly negligent. In coming to its conclusions, the jury will consider:

• if the organisation failed to comply with any health and safety legislation relating to the death
• how serious was the failure
• how much of a risk of death it posed
• any relevant health and safety guidance when coming to its conclusion

Management Definitions:
Whilst ‘senior management’ of an organisation is not well defined, it is taken to be at a level which can influence the direction and activities of the organisation. This would certainly include the directors but could also include senior divisional managers. It is unlikely that an individual factory or site manager would be counted as senior management but between this level and the directors is a very grey area.

Being under investigation for Corporate Manslaughter is extremely stressful for the individuals involved and the investigation can continue over a number of years and even if the organisation is successful in dissuading the CPS from prosecuting the costs both in terms of management time and company resources are very significant.

Action you should take:
Companies can protect themselves from accusations of Corporate Manslaughter by following the principles of Plan, Do, Check and Act.

• Planning involves planning for safety including setting objectives and goals, allocating the necessary resources and responsibilities and identifying how to control the hazards associated with the organisation.
• Doing involves putting the plan into action and ensuring that work carried out is in accordance with planned procedures to control both Health and Safety hazards. It means having competent employees at all levels.
• Checking involves a process of supervision, auditing and incident investigation to try and find where there are areas for improvement or failure.
• Action is simply putting in place remedial measures to counteract the shortfalls identified in the checking process and then following them to conclusion.

In our experience the best organisations are generally reasonable at ‘planning’ and ‘doing’ but quite often fail to ‘check’ adequately relying on the absence of events to indicate matters are under control.

One of the most successful ways to prevent such complacency is to carry out independent external audits that will report to the organisation’s senior management on how the organisation is performing. Safety Management Limited has carried out such audits on many occasions and where the results of the audit have been acted upon the organisations senior management can easily demonstrate they have not been negligent let alone grossly negligent putting them in a very good position to fend off accusations of corporate manslaughter, or as individual’s gross negligent manslaughter.

For more information about this please contact Safety Management – we’re here to help.