The Herald of Free Enterprise, Piper Alpha, Clapham and Hillsborough disasters all took place between 1987 and 1997. In that decade there were 3,000 workplace deaths. In 1997 Jack Straw announced a reform to introduce an offence of corporate killing.
Yet, in the wake of this, only two small companies were successfully prosecuted for manslaughter – a haulage firm and a watersports firm. Three directors received jail sentences of 12 months, 18 months and two years.
In the current climate the public are demanding change. Realistically, enactment of legislation to create a corporate killing offence is probably some two years away. But, be warned, it will come. Rest on your laurels at your own risk is the message to take back to the
A company would be liable for corporate killing if:
n its conduct fell “far below” reasonable
n management failure within the company caused death
n notwithstanding the act or omission of the individual, management failure can be regarded as a cause of that person's death.
The new offence overcomes the main hurdle that prevents successful prosecution under the current legislation – the doctrine of identification. Currently you must find someone who “embodies” the company, someone with the “directing mind”. With the new offence, management failure would be sufficient.
The proposals are far reaching. Potentially, some 3.5 million enterprises might become liable for the offence of corporate killing. These would include organisations such as hospitals, charities, schools and partnerships.
Worryingly for directors, a company conviction for corporate killing will not preclude individuals being prosecuted for reckless killing (which carries a maximum penalty of life imprisonment) or killing by gross
negligence (maximum penalty ten years).
It is likely other non-custodial penalties will be made available to the judiciary. Powers to impose remedial notices on companies, and to disqualify directors from management roles for a limited time (or permanently), are likely. Private prosecutions could take place without the consent of the DPP, and a directors' code of practice could be put in place so that every company has to have a named person with statutory responsibility for health and safety matters.
Addressing the change
1. Institute an effective risk assessment
2. Ensure that if you delegate a task to someone else that task is carried out.
3. If you assess and identify a risk act upon it immediately. Failure to address the risk is persuasive evidence of sloppy procedures and ineffective communication.
4. Ensure health and safety is a boardroom matter from the outset.
5. Comply with the Health and Safety at Work Act 1974. A failed prosecution for corporate killing can still leave you open to a prosecution under Sections 3 or 7 of the Act.
6. Check your insurance, particularly your directors' and officers' policy. Insure yourself against the costs of such a prosecution, as these will be high. (Be aware policy costs could soar if these provisions are enacted).
7. Set up an effective email policy. Anything that can be read from a hard drive and converted into readable form is a discoverable document .
8. Never speak to the Health and Safety Executive (HSE) or the police without legal advice. Things can soon escalate. The same applies if you are called to give evidence at a coroner's inquest. Seeking advice does not infer guilt in spite of what the police may tell you.
9. Encourage a blame-free culture of accident reporting. It has worked in the aviation industry – its accident levels have dropped considerably. Without honest reporting procedures you will not be able to identify risks and act in time.
Great Western Trains (GWT) was fined £1.5m for the disaster at Southall. To put it into perspective, £1.5m was 5.6% of GWT's profits for the year ending March 31, 2000. Things will change. The fines will be assessed in relation to turnover. If you are not making health and safety a priority from shop floor to boardroom, and insisting that standards fall within reasonable levels, there will be no-one there with a get out of jail free card. Act now.
n Elizabeth Kelly is a solicitor at Berrymans Lace Mawer. Contact: firstname.lastname@example.org. Andrew McDonald is a partner at the firm. Contact: email@example.com.