Getting the Act Together
Richard Scott studies the potential impact of the Corporate Manslaughter Act.
Causing the death of an employee or anyone connected to a business is obviously a terrible thing and hopefully not something any EPA readers ever have to experience, but working in the electrical industry has its inherent dangers so it is important to be aware of a new Act soon to come into force.
Between 1992 and 2005 3,452 workers were killed in industrial accidents in Britain. While few of these would have been due to negligence on the part of the employer (7 led to convictions), it remains necessary for a clear path to be available in order to prosecute companies displaying a disregard for their duty of care.
The British legal system moves along at a suitably ostentatious pace. After nearly ten years of proposals, drafts and approvals, the Corporate Manslaughter and Corporate Homicide Act 2007 will come into force on 6th April allowing for the first time companies to be prosecuted for ‘Corporate Manslaughter’ where previously ‘Gross Negligence Manslaughter’ was the only option.
The old offence (confusingly often referred to as ‘corporate manslaughter’) somewhat hamstrung prosecution lawyers by requiring a “directing mind” of the company to be personally guilty of the offence in question. The directing mind referred to someone from senior management who essentially embodied the company.
It is easy to see how the offence of gross negligence manslaughter (which can still be imposed) proved tricky to pin onto a case, or individual directing mind and consequently why this area of law has been targeted for reform. However, the new Act is not without its critics who claim it falls short of expectations both in terms of who is brought to court and the sentences imposed.
The first aspect of the new Act that should be noted, particularly for the electrical industry, is that it stands only to complement existing health and safety law. No alterations have been made to accommodate the Act, so only those who choose to cut corners on current health and safety legislation need to worry.
The response this point often brings is that the HSE is already a powerful organisation and Britain’s record on health and safety is enviable, so is this bolstering of a successful system necessary?
On top of this, the Act is incapable of bringing prosecutions against specific individuals. The person in the dock will be a lawyer representing the organisation with penalties also targeted at the company.
So is the Act toothless? Not entirely. While the legal system already has the power to impose unlimited fines, the Corporate Manslaughter and Corporate Homicide Act adds extra weapons to the armoury. Key to this is the Publicity Order which requires the company or organisation to publicise details of its offence and conviction.
This penalty seems to take into consideration how companies operate in the 21st century. Spending millions to create a corporate image over many years is commonplace, so the publicity order could create more damage over a longer period than a one off fine alone.
The core of the Act is the need to show that a gross breach of relevant duty of care has taken place. Again, these duties already exist in the civil law of negligence with the new offence resting on top. There are very few exemptions from jurisdiction (military operations, certain policing operations) so the Act applies to foreign companies operating in the UK and also to all employing partnerships within a supply chain.
Those in favour of the Act believe it plugs the gaps left open by the offence of gross negligence manslaughter. Public perception was that it was too easy for companies to hide behind their convoluted corporate ladders making it impossible for the legal system to pinpoint blame or indeed punishment.
Following a series of horrific and deadly train crashes during the 90s there grew a groundswell of opinion that executives were left unpunished for actions that led to the deaths of many innocent passengers. Although this reformation of corporate manslaughter falls short of making individuals accountable it does make the process of bringing a mismanaged company to court far easier, which is certainly a step in the right direction.
Claims that it will improve workplace safety are harder to justify. Publicity surrounding its enforcement may ensure less than scrupulous employers tighten their act, but otherwise it leaves the finer detail of safety in the workplace to the existing regulations. And while our health and safety regulations remain some of the most watertight in the world, this fact should not cause any concern. Everything should be in place for employers to provide adequate measures for safety in even the most difficult of environments. Accidents unfortunately will always happen, but ‘accidents’ caused by serious lapses of health and safety management are never unavoidable.
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