For organisations in England, Wales and Northern Ireland, the offence created by the new Act will be known as 'corporate manslaughter', whereas in Scotland, it will be known as 'corporate homicide'.
An organisation might be convicted of the new offence where a person has died – but not necessarily at work – as a result of a very serious failure in the way that the organisation's operations or activities have been managed at senior level. The offence will apply where there has been a significant failure to manage risks relating to health and safety.
Under the new Act, an organisation might be found guilty of corporate manslaughter if a fatality has occurred as a result of a 'gross' breach of the duty of care owed by that organisation to an individual.
How does the new Act affect the existing situation?
Employers have been under a legal duty to manage health and safety risks for many years – for example, under the Health & Safety at work Act 1974 and other primary legislation and regulations. It has also been possible for employers (including individuals) to be prosecuted for manslaughter or injury caused to employees or people affected by their business operations. This will not change and the new law will sit alongside the existing law.
The new offence will apply to companies and other corporate organisations, partnerships and government departments where someone has died as a result of a 'gross' breach of a duty of care, arising substantially out of the way the business has been managed at senior level.
In the past, where there has been a failure within an organisation, the law has not always provided the means to hold anyone responsible. The new Act clarifies the position and provides for an organisation to be held accountable for the failures of its senior decision-makers.
What is the 'duty of care'?
An employer owes a duty of care to its employees and anyone else who might be affected by its operations or activities. This rule already exists under the law and the new Act does not change this situation. The people who might be affected by an employer's activities are it employees, clients, customers, contractors, visitors, tenants and any members of the public who might come into contact with the business or its products or services. In practice, this means that an employer is under a duty to ensure that people who might come into contact with it are kept safe from potential harm and that there must be adequate systems in place to address risks to their health and safety.
What is a 'gross' breach of the duty of care?
As mentioned, an employer must have adequate systems in place to address potential risks to health and safety. A 'gross' breach of the duty of care would amount to these standards having fallen to a severely and dangerously low level. Ultimately, whether or not this had happened would be decided by a jury.
What is the penalty for corporate manslaughter?
If an organisation is convicted of the offence, it might have to pay a very heavy fine as there is no upper limit specified on the amount payable. In addition, the organisation might be ordered to put the failures right and publicise the fact that it had been convicted.
Are all organisations affected by the new Act?
The Act applies broadly to organisations in the public and private sectors but some organisations or their activities are exempt – for example the response of the emergency services and some functions of public sector organisations.
All organisations must comply with existing health and safety requirements as the new Act does not change any of these current requirements.
What about the responsibilities of individual managers?
The new offence applies to organisations rather than individual managers although the offence can only arise where there has been a serious failure by senior managers. Individuals can also be prosecuted for health and safety failures under the existing law and this could include cases where there has been a death or injury. This situation will remain unchanged.
How should organisations and managers respond to the new Act?
The new Act might be viewed as a threat to organisations but it can also be greeted as an invitation to senior managers to review the health and safety systems of their organisation.
All senior managers know that the basic starting point is to carry out a risk assessment of the hazards that might be present or might arise as the result of their organisation's existence, or activities, including the premises from which it operates, its products or services and the full range of factors relating to the business. The complexity of the assessment will depend on the size and nature of the business.
The next step is to consider existing systems that have been put in place to deal with health and safety issues and this will include all current policies.
If the existing systems do not address all the health and safety issue that have been identified, there is a gap that has to be closed. This is risk management at its simplest.
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