The Corporate Manslaughter and Corporate Homicide Act 2007 is a landmark in law. For the first time, companies and organisations can be found guilty of corporate manslaughter as a result of serious health and safety management failures resulting in a gross breach of a duty of care.
An organisation can only be found guilty of the offence if the way in which its activities were managed or organised by senior management was a ‘substantial element’ in the breach of duty. This will involve an analysis of the actions taken by those deemed ‘senior managers’ within an organisation. The test to determine whether there has been a ‘gross breach’ of any relevant duty of care is whether the conduct in question falls far below what can reasonably be expected of the organisation in the circumstances.
In determining this issue, the jury will be required to consider whether the evidence shows that the company failed to comply with any health and safety legislation relating to the alleged breach and, if so, how serious the failure was and how much of a risk of death it posed. The jury may also be invited to consider the extent to which the evidence shows that there were attitudes, policies, systems or accepted practices within the organisation that were likely to have encouraged any such failure.
This will involve looking at senior management conduct, collectively and individually, to pinpoint the root cause of the failure to provide adequate practices and systems for managing the particular activities the organisation undertakes.
The first case involved Cotswold Geotechnical Holdings who were fined £385,000 in February 2011 following the death of an employee who was left working alone in a 3.5m deep trench to ‘finish-up’ when the company director left for the day. The two people who owned the development plot decided to stay at the site as they knew that the Cotswold employee, Mr Wright, was working alone in the trench
About 15 minutes later they heard a muffled noise and then a shout for help. While one of the plot owners called the emergency services, the other one ran to the trench where he saw that a surge of soil had fallen in and buried Mr Wright up to his head. He climbed into the trench and removed some of the soil to enable Mr Wright to breathe. At that point, more earth fell so quickly into the pit that it covered Mr Wright completely and, despite the plot owners best efforts, Mr Wright died of traumatic asphyxiation.
Taking this into consideration it is strongly recommended that every organisation’s board of directors includes health and safety as a standing item on the agenda for board meetings, to have a specific training budget allocated to health and safety and to ensure that both managers and directors are kept appraised of latest developments of health and safety law by subscription to appropriate resources. Shieldyourself have more than adequate resource and experience to assist any business in achieving this.
Boards should also pay particular attention to incidents that may come within the ambit of previous warnings or advice and pay particular attention to any recommendations made by the HSE or Local Authority in relation to the running of its activities. Directors can also find guidance in the HSE’s publication Leading Health and Safety at Work: Leadership action for Directors and Board Members (INDG417) which can be downloaded from the HSE website. Organisations should, therefore, be in no doubt that demonstrating a strong health and safety culture is now as strategically important as dealing with any other business risk.
The second case, heard in May this year, involved JMW Farms Ltd. In this case a pig farm located in Northern Ireland was fined £187,500 following the death of an employee, Robert Wilson.
On 20th July 2012, a Manchester based storage-products manufacturer, Lion Steel Equipment Ltd, was ordered to pay a fine of £480,000 after entering a guilty plea to corporate manslaughter following the death of 45-year-old employee Mr Berry on 29 May 2008. Mr Berry fell through a fragile roof light at the company’s Hyde premises after he had gone to check the source of a leak. It was also ordered to pay a contribution of £84,000 towards the Crown Prosecution Service’s costs.
It is apparent that fines are increasing. Why not get in touch and see if we can help you prevent ever having to face the trauma, disgrace and financial loss of this type of offence.