CORPORATE MANSLAUGHTER - DOES IT EFFECT ME? by Allen Wilson
My current concern is about the weather because we don’t have proper weather any more. When I was in my teens the snow came and it stopped for what seemed like forever. Roads iced over, outside toilets froze up solid and as an apprentice plumber my blowlamp was, it seemed always in my hands, defrosting some pipes and repairing others. I would add that I failed miserably as a plumber (as I also did as a pool manager, a rugby player and an astronaut) as you must now be thinking why am I eking out a living, writing this stuff when I could be on pop star’s earnings that plumbers now seem able to command. Well if you think of the old maxim, ‘if you can’t do it, teach it!’
So that’s me unable to ‘walk the walk and therefore just talking the talk’ but at least I have not achieved failure in this, well not yet anyway. Recently to refresh my memories of snow but primarily to earn a crust I flew to Newcastle and quickly realised that nostalgia isn’t what it used to be. This realisation came to me in the nanosecond between losing my balance on the ice and hitting the floor displaying all the grace of Boeing 777 crash landing at Heathrow (yeah that may be months ago now but it happened only a week ago as I wrote this article).
Anyway whilst I was there the customer sounded me out about delivering a seminar on Corporate Manslaughter and after agreeing to do this and negotiating a fee for delivering I decided I really should find out something about the subject, well enough to convince my audience that I was a expert (definition: someone from 200 miles away with a BMW) on this subject. Not to be confused with a consultant who live a lot further away.
What I did know a bit about it, was nevertheless enough to make me welcome the new legislation that took effect from April 6th 2008.
At present under current legislation there must be a definite link between the company’s guilt and the gross negligence of a specific individual who is said to be the controlling mind of the company.
There have been high profile cases under the existing legislation that have failed miserably and this is the main reason behind the introduction of the new act.
P&O European Ferries and two directors were acquitted of the manslaughter of 192 people who died when the Herald of Free Enterprise sank off the coast of Zeebrugge in May 1987 after it had left port with its bow doors open.
Great Western Trains was cleared of the manslaughter of seven people who died in the Southall Train Crash in 1997 after the Crown Prosecution Service tried to prosecute the company without prosecuting any individual director or manager. The court ruled the case could not go ahead on this basis
Less than ten successful prosecutions have been achieved and these were against small companies where the director and company are essentially one and the same. An example of this was the nine year jail sentence handed out to Mark Connolly of MAC Machinery Services following the deaths of four railway workers who were killed when a wagon carrying 16 tonnes of steel rail tracks came out of the darkness and hit them as they worked on a railway line. The wagon had traveled downhill for approximately three miles after Connolly, the boss of MAC had deliberately disconnected the hydraulic brakes on the wagon because it was cheaper than repairing them properly. Not only that, he had then filled the pipework, usually filled with hydraulic brake fluid with ball bearings to give the misleading impression everything was working OK
Basically with a two man firm it was a simple exercise to determine the controlling mind in the MAC organisation
So very much in simplistic terms; corporate manslaughter is a crime that can be committed by a company in relation to a work-related fatality. The offence is fundamentally linked to whether a director or senior manager: a controlling mind of the company is guilty of manslaughter. If they are found guilty, then the company is guilty; if the director or manager is found innocent, the company is also innocent.
The act, clarifies the criminal liabilities of companies including large organisations where serious failures in the management of health and safety result in a fatality. So following the seminar I was asked the following questions that I now share with you
Q. How does it affect those working in the pool, spa & leisure industry?
A. The Act focuses on the way in which a company's activities are managed. It is not reliant on one individual being found guilty of gross negligence manslaughter. The courts will now be able to consider the wider picture, looking collectively at the actions, or more appropriately the failings, of the company's senior management.
Further simplified: senior management of companies/organisations need to ensure that their action, miss-actions and inactions does not lead to fatalities of their workforce or others not in their employment through their gross failure of management. It also removes ‘crown immunity’ and this means that departments such as the Civil Service is no longer in the privileged position of being virtually above the law in H&S matters.
Q. Who would be classed as senior management?
A. Senior management is defined in this Act as those persons who play a major role in the decision-making process regarding how the company's activities are managed and controlled.
Q What will amount to a gross management failure?
A. To secure a conviction, the prosecution must prove that the management failure amounted to a "gross breach" of the duty of care owed to the deceased. The act is not retrospective.
Q Will the new Act affect individuals?
A. No! individuals can already be prosecuted through existing H&S legislation. The new act is about corporate accountability and liability
Q What sort of penalties will a company face?
A. Penalties include an unlimited fine, remedial orders and publicity orders. A remedial order will require an organisation to take steps to remedy any management failure that led to death. The court can impose an order making the company/organisation pay to publicise the fact they been convicted of the offence, giving details including the amount of any fine imposed and the terms of any remedial order made. Companies will also be ordered to put right their health and safety practices and offenders will be named and shamed with details of their fines and offences with, as already stated, the company paying for this adverse publicity.
Q. This all sounds like it’s about big companies. Have small leisure facilities got anything to be worried about?
A. Yes. The new law applies to firms of all sizes so small builders are covered by it. Companies will be prosecuted whatever their size if management failures led to the death of workers or others on site.
Q. I’m the owner of a small pool building firm – could I go to jail?
A. No the new act does not contain the power to jail company bosses and are solely concerned with taking action against companies. But you can still be put in prison for killing an employee or other under health and safety laws and the common law of gross negligence manslaughter.
Q. Have the court the power to bankrupt me?
A. Yes unlimited fines mean just that and are likely to be used to that effect.
Q. What sort of proof will the authorities need for a prosecution?
A. They must prove that the management failure amounted to a ‘gross breach’ of the duty of care owed to the victim. Factors that will be investigated include whether the company complied with relevant health and safety legislation, and if it did, how serious that failure was, and how much of a risk of death it posed.
Q. What should I do now to make sure I stay out of trouble?
A. The best defense is to have in place robust health and safety policies and safe systems of work. Ensure that your organisation stay up to date with not just legislation but also lead body recommendations in their relevant sector.
Q. Who will investigate and prosecute under the new offence?
A. The police will investigate suspected cases of corporate manslaughter/homicide. Prosecution decisions will be made by the Crown Prosecution Service (England and Wales), the Crown Office and Procurator Fiscal Service (Scotland) and the Director of Public Prosecutions (Northern Ireland).
Q. Where can I get more information?
A. The HSE has published in conjunction with the Institute of Directors a guidance document entitled, 'Leading health and safety at work: leadership actions for directors and board members’ (INDG417) This can be downloaded from the HSE website.
Alternatively attend one of my seminars on this enthralling subject but you now know as much as me about it. I know that my Professional Indemnity insurance has suffered a severe upwards hike up on the strength of it or as they phrased it in their revised terms for 2008 “much to our regret we are forced to…..”
Yeah yeah whatever.
Allen J Wilson FISPE MInstSRM
Studies In Work H&S consultants
3 Thornhill Close, Gloucester GL1 5NQ
Tel 01452 417533 Mob 07885 615547
Email info@studiesinwork.co.uk
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