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A Manager's Guide to the Corporate Manslaughter and Corporate Homicide Act 2007...

The Corporate Manslaughter and Corporate Homicide Act 2007 came into force on 6 April 2008, across the UK. The Act sets out a new offence for convicting an organisation where a gross failure in the way activities are managed or organised results in a person's death.

This will apply to most organisations in both the public and private sectors.

In England and Wales and Northern Ireland, the new offence will be called 'corporate manslaughter'. It will be called 'corporate homicide' in Scotland. Under a new approach, courts will look at management systems and practices across the organisation, providing a more effective means for prosecuting the worst corporate failures to manage health and safety properly.

If the death can be attributable to gross negligence then the company can be prosecuted under this Act. It is not necessary to prove that the persons involved were the controlling mind of the company, only that they exercised enough management control to make them decision makers for the subsequent failure.

As the company is prosecuted, no person can be imprisoned, however, in the event of the company being found guilty, the recommended penalty is between 2% - 10% of total turnover in the preceding trading year.

Gross Negligence Manslaughter

Gross negligence manslaughter is an offence whereby a person can be prosecuted for the death of another which has arisen through gross negligence.

In order to determine whether an act constitutes the offence of gross negligence manslaughter, the Crown must establish that::-

• There was a duty of care owned by the accused to the deceased;
• There was a breach of the duty of care by the accused;
• Death of the deceased was caused by breach of the duty of care by the accused;
• The breach of the duty of care by the accused was so great as to be characterised as gross negligence and therefore a crime.

The offence carries a maximum sentence of life imprisonment and has been used on a number of occasions in the recent past.

In 2004 two men were jailed for the manslaughter of four rail workers. Four men - one from Cumbria and three from Lancashire - died after they were hit by a runaway trailer at Tebay, Cumbria, in February 2004.

Rail boss Mark Connolly, 44, of north Wales, and crane operator Roy Kennett, 29, of Maidstone, Kent, were each found guilty of four counts of manslaughter. Connolly was jailed for nine years and Kennett for two years at Newcastle Crown Court.

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Penalties Increase under the Health and Safety Offences Act 2008...

From the beginning of January 2009, the penalties open to courts to impose for health and safety offences have been radically altered. The Health and Safety at Work Act 1974 has been amended by the Health and Safety Offences Act 2008.

Until now no person could be imprisoned for health and safety offences apart from one or two obscure breaches such as the failure to comply with an improvement or prohibition notice or failing to comply with a court order.

Penalties in the Magistrates Court:-

Old Penalty

New Penalty

Sections 2-6 HSW Act	£20,000	£20,000	Imprisonment for up to 12 months
Section 7	£5,000	£5,000	Imprisonment for up to 51 weeks
Sections 8, 9	£5,000	£20,000	Imprisonment for up to 12 months
All Regulations	£5,000	£20,000	Imprisonment for up to 12 months

Penalties in the Crown Court:-

Old Penalty

New Penalty

All Cases

£ Unlimited

£ Unlimited

Imprisonment for up to 2 years

From the beginning of 2009 all offences heard in the Magistrates Court carry a maximum penalty of £20,000 fine and up to 12 months imprisonment with the exception of Section 7 offences - these are offences by individuals where they have failed to look after their own health and safety or that of others who are affected by their acts and omissions.

In these cases the maximum fine remains at £5,000 in the Magistrates Court with a maximum prison sentence of 51 weeks - out in time for Christmas?

All cases heard in the Crown Court have unlimited fines, and individuals can be imprisoned for up to 2 years.

It is therefore very likely that in the event of a serious incident where there has been gross negligence, the individual concerned will face a prison sentence.

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Will your Employees Whistle while they Work?...

It appears that the word is well and truly out. Admittedly it has taken about ten years from becoming a rather obscure new law to the current position, whereby 'whistleblowing' claims have become something of flavour of the month, (or is that decade). Of course there is a health and safety connection in that the most common type of complaint arises from staff complaining of health and safety breaches.

Historically employees have been reluctant to blow the whistle as their �card would be marked� if they did. However, with the arrival of the Public Interest Disclosure Act 1998 (now incorporated into the Employment Rights Act), workers are effectively placed within a protective cocoon, with any attempt to subject them to a detriment being actionable, with significant consequences.

In keeping with much recent legislation in employment law, this law refers to �Workers�, rather than employees. So, what's in a name? This is a law offering protection to those who are agency workers, or contractors on longer assignments. Indeed, it is only those who are genuinely self-employed independent contractors in the traditional sense who are not within the ambit of the legislation. Any dismissal or detriment is actionable in the employment tribunal. Detriment can be to isolate or 'cold shoulder' someone, failing to promote or train, or inflict any other unfair treatment. Any attempt to contract out of the legislation is invalid, and there is no minimum length of service, as in most other unfair dismissals.

What type of complaint might be within the scope of protection? The Act creates a six pack; six activities carried out by an employer, disclosure of which would result in protection for the worker:-

• A criminal offence has been, is being, or is about to be committed;
• A person has failed, is failing or is likely to fail to comply with a legal obligation;
• A miscarriage of justice has occurred, is occurring or is likely to occur;
• The health and safety of any individual is, has been or is likely to be endangered;
• The environment is, has been or is likely to be damaged;
• Information tending to show that any matter falling within the above categories has been, is being or is likely to be concealed;

Provided that the worker had a reasonable belief in the truth of the disclosure, this will be sufficient to result in protection being afforded. Therefore, as a matter of fact, an employee might be wrong in raising a matter but still be within the scope of protection. One might say that employers have the burden of proving bad faith, which is difficult.

Moving on from the conduct of the employer we turn to the responsibilities of the worker and the question arises as to who they can complain to. The first logical step would be to disclose to the employer or other responsible person. The legislation supports this approach as a first step in the hope that in bringing the matter to the attention of the person responsible initially, no further steps will be necessary. However, it can involve disclosure to the workers own legal adviser, if only to ascertain whether protection is applicable in their own case. Typically, when no satisfaction can be gained by conventional means, complaints to a 'prescribed person' might be appropriate. eg the Health and Safety Executive, Vehicle Inspectorate, Environment Agency, HMRC, Audit Commission, Serious Fraud Office, and so the list goes on, which is unnerving, conjuring up the spectre of all these regulatory bodies ready to launch themselves into dynamic action on the blowing of the whistle!

Finally, some readers will be aware that the current maximum statutory payment for unfair dismissal sits at just over �66k. That of course is alarming, but here is the body blow. If a tribunal takes the view that the dismissal was attributable to a whistleblowing act, there is no maximum and we have seen claims in recent times achieving awards in the hundreds of thousands. I bet that has cheered you up!

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