Focus on health and safety: Corporate Manslaughter and Corporate Homicide Act 2007

With the latest figures from the Health and Safety Executive showing that 77 workers were fatally injured in the UK construction industry to year-end summer 2007, the sector will be aware more than most of the pending Corporate Manslaughter and Corporate Homicide Act 2007.

This new law comes into force in April, creating a new offence that in England, Wales and Northern Ireland will be called corporate manslaughter, and in Scotland as corporate homicide.

The Act will make it possible for organisations to be prosecuted if someone who is owed a duty of care has been killed at (or by) work because of a failure in how the organisation's activities are managed or organised, amounting to a 'gross breach of duty'. Not only are employees encompassed under this duty of care, but also customers.

For example, train passengers, members of the public, people living near a major construction site or pedestrians walking under scaffolding.

It will be possible for organisations to be prosecuted under the new law if it is found that any death came about due to a failure at senior level, such as directors or senior managers, to put in place adequate health and safety systems and procedures. The conduct of any organisation charged must also be found to have 'fallen far below what could reasonably be expected in the circumstances'.

No individual can be prosecuted under the Act as it is directed solely at organisations and companies. Indeed, according to Richard Jones, policy and technical director at the Institution of Occupational Safety and Health (IOSH), moves to develop this law began in the wake of a number of high-profile disasters where prosecutors found it impossible to act against organisations.

"There was a lot of public disquiet following the Zeebrugge disaster in 1987 where 193 deaths occurred because the cross-channel ferry the Herald of Free Enterprise capsized after leaving port with its bow doors open, and the investigation found problems with safety culture and management," he explains. "The need for a new law was raised again after the train crashes at Southall in 1997 and Hatfield in 2004."

Prior to this Act it proved very difficult to prosecute large corporations for gross negligence, manslaughter or culpable homicide because the law required proof that a "directing mind" (that is, an individual at the very top of the organisation who can be said to embody its decisions or actions) was guilty of the offence.

Now the law creates a variant of this offence. Rather than focusing on an individual, corporate manslaughter is specific to organisations. It attributes criminal liability to the way their activities are managed by senior figures in the event of a death in the event of a death caused by a breach in duty of care.

Financial penalties

According to Kevin Elliott, a partner at international law firm Eversheds, organisations found culpable are likely to face large financial penalties, as fines are unlimited under the new law.

Guilty organisations will also be ordered to take remedial measures to ensure they put in place adequate safety systems and procedures. And they may well face a publicity order requiring them to make public what went wrong and what is being done to repair the situation.

"This could mean organisations having to take an advert out in a national newspaper or trade journal. There's an element of name and shame about this and culpable organisations may experience huge damage to their brand and reputation," warns Elliott.

Despite all the publicity surrounding this so-called "corporate killing law" it is predicted that only a handful of organisations will face prosecution under the new Act each year. This comes from an impact assessment carried out by the Home Office in 2006, where it was estimated the proposed law would lead to only a possible 10 to 13 extra prosecutions annually.

This is because companies who comply fully with current health and safety laws that already exist should have nothing to fear from the new legislation.

The Health and Safety at Work Act 1974, for example, legislates that employers have a duty care towards their employees, while the Management of Health and Safety at Work Regulations 1999 obliges organisations to conduct adequate risk assessments.

However, Mark France, a senior health and safety advisor at risk management consultancy National Britannia, says the arrival of this new law should spur employers to revisit their health and safety procedures and ensure there are no gaps. He says: "Organisations should be looking at their safety plans and asking themselves a number of questions: Are the right structures in place? Is everyone, especially senior managers, competent in this area and aware of their responsibilities? Are senior managers ensuring that line managers and their teams are equipped with the right resources and knowledge?"

Companies operating across all sectors will be asking themselves these questions in the run up to April and firms in construction will be no different.

At scaffolding specialist SGB Group, head of health and safety Neil Murray says he is confident that he has more than adequate checks and balances in place. He says the company works to a five-point cycle where risk assessments are carried out policies are devised and then implemented, while constantly being monitored and reviewed.

Murray warns that as a result of the legislation, should a fatality occur on a construction site, investigations are likely to go beyond the on-site supervision and attempt to determine whether the right procedures were in place from the top down.

"The upshot is clear. If, for example, it is found that scaffolding wasn't tied to a building and a worker dies as a result, it's not enough now simply to blame the supervisor," he explains. "Investigators will want to look up the chain of command and see that from the top down, managers were emphasising the need to plan, check, clean and secure scaffolding and that they had taken appropriate steps to make sure this message is understood.

"This Act is all about the corporate entity, the culture of a company. Directors and senior managers need to be appraised to ensure they know what role they must play in terms of strategic safety. Even the financial director, as a member of the senior management team, must be actively involved and have a real understanding of why the business is dedicating so much of its resources to health and safety."

Mark France at National Britannia has also worked extensively in the construction industry and says the use of subcontractors is also covered by the new law. He says companies that employ contractors must ensure they also have adequate safety procedures in place and are aware of their obligations.

With a high number of non-British workers employed in the sector, construction firms must also ensure people who may not speak good English and struggle to understand the finer points of health and safety instructions fully grasp their responsibilities.

France adds: "In these cases it's not enough to put them through a health and safety workshop and assume they have understood.

Communications must be adapted, so foreign workers fully comprehend what is entailed in a safe system of work."

Corporate manslaughter checklist

• Provide update training for senior managers on their health and safety responsibilities.
• Include senior managers such as financial directors who may not traditionally have been involved in health and safety training.
• Review all health and safety policies to ensure that statements made and standards set are achievable.
• Review your health and safety culture to promote a safer environment for your employees and, where relevant, the public.
• For each new project, ensure all contractors are aware of their safety responsibilities and have adequate procedures in place.
• Extra focus should be directed towards training non-English speaking workers to ensure they are fully equipped with adequate health and safety knowledge on site.
• Check that your insurance cover includes legal protection in the event of criminal charges for corporate manslaughter.