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For (England, Wales & Northern
Ireland) and (Scotland)
The Act is a clear warning for
businesses to comply with the new legislation and the existing health and
safety laws.
The focus of the new legislation is on
senior management and complements the current unchanged law under which
individuals can be prosecuted and imprisoned for gross negligence
manslaughter.
It applies where no one person can be
held responsible but where the system is at fault.
Key points:
- The offence of corporate manslaughter
replaces the old common law offence of corporate manslaughter.
- The Act comes into force on the 6th
April 2008 and makes it easier to prosecute organisations following fatal
accidents.
- All organisations face prosecution
regardless of size, method of incorporation or group structure.
- Overseas organisations fall within the
scope of the Act.
- Individual directors and managers
cannot be liable for corporate manslaughter
- If convicted, unlimited fines, “remedy
orders” and “publicity orders” involving the stigma of publicising the
conviction, will be imposed.
- It is important for a business to
understand how liability arises and to take the steps necessary to minimise
risks.
The new offence:
Organisations covered by the Act,
including corporations and, where they are employers, partnerships and trade
unions, will be guilty of the new offence if the way their senior management
organises or manages their activities:
- causes a person’s death; and
- this amounts to a gross breach of a
relevant duty of care owed to the deceased.
The test for a gross breach is whether
the conduct in question falls far below what can reasonably be expected of
the organisation in the circumstances.
Senior management means persons who play
a significant role in:
- the making of decisions about how the
whole or a substantial part of the organisation’s activities are to be
managed; or
- the actual managing of the whole or a
substantial part of those activities.
Organisations must prepare now so as to
minimise exposure to the new legislation and properly manage the changes, as
investigations for an offence are disruptive and prosecutions long, costly
and distressing.
In preparation for the new
legislation, organisations should:
- comply with their duty of care toward
their employees
- determine who could be considered as
“senior management” and assess their competency
- train staff and ensure senior
management are competent and aware of the new laws
- review health and safety policies to
ensure the standards set are sufficient and achievable
- review job titles to ensure they
accurately reflect seniority of staff
- review procedures to ensure compliance
with health and safety laws, the CDM Regulations and consider steps to
promote a health and safety culture
- put in place an accident management
protocol for dealing with authorities
- check their insurance cover
- take legal advice from the outset if a
serious accident occurs
For further details and
specific advice, please contact James Barnatt, Partner in the Commercial
Department FREE on
0800 66 22 66.
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accident
claims