Corporate Manslaughter and Corporate Homicide Act 2007
'The Corporate Manslaughter and Corporate Homicide Act'. The Act came into force on April 6th 2008, with any future fatal accident being heard in a court of law using this Act, rather than it being heard under the Health & Safety Act. For the first time, companies and organisations can be found guilty of corporate manslaughter as a result of serious management failures resulting in a gross breach of a duty of care.
- The Corporate Manslaughter Act - main provisions
- It starts in the Boardroom
- What does this mean for Drivers and Operators?
- Driving on Company Business
- Further Reading
The Corporate Manslaughter Act - main provisions
The main provisions of the Act are a set of ground rules whereupon if you adhere to the requirements expected of you and your company, you will comply and have nothing to fear. In a nutshell, the application (on your part) of common sense practices and policies are the required foundations to ensure your corporate responsibilities are being met in full.
Three words sum up this Act - 'Duty of Care'. This is not merely the duty of care that you are obliged to administer to your employees, it is equally the duty of care that you are seen to be exercising in your regard to your corporate responsibility. This equally encompasses the environment, human rights and third world poverty where your business has an effect or may have an impact directly or otherwise.
So what of corporate failings?
Prosecutions will be of the corporate body and not individuals, but the liability of directors, board members or other individuals under health and safety law or general criminal law, will be unaffected. This means that the corporate body itself and individuals can still be prosecuted for separate health and safety offences. The Act also largely removes the Crown immunity that applies to the existing common law corporate manslaughter offence.
Any offence committed will:
- require the organisation to owe a duty of care to the victim, which is obvious in a driving scenario;
- focus on senior management failures, either individually or collectively;
- require evidence that the management failure amounts to a gross breach of duty to take reasonable care;
Management failure criteria will consider:
- the way in which a particular activity is being managed (in reality, mismanaged);
- responsibility falling on senior directors and managers;
- actions of individuals who have a "significant role", where management responsibilities bear on the organisation as a whole or substantial part of it. This includes health and safety and fleet managers;
- actions of a middle manager undertaking a senior role will be relevant;
A jury hearing a corporate manslaughter case will still have to find that there has been a gross breach of duty by the company (or gross negligence manslaughter by a senior manager). The company would have failed to embed a health and safety culture within its management process. The jury will hear evidence of how the company's health and safety culture measures up against the Health and Safety at Work Act 1974 and its subsequent management regulations, codes of practice and guidelines.
It starts in the Boardroom
Protecting the health and safety of employees or members of the public who may be affected by your companies activities is an essential part of risk management and must be led by the board. In the transport sector, the ownership of a companies actions is already catered for under Operator Licensing; this is by the company secretary (usually a company director) having to pen his/her name alongside the transport managers to satisfy the requirements. However, within this realm, no such signature is required, being the 'helmsman' is sufficient.
For any corporate body to avoid finding itself in the position of facing prosecution, there are sufficient support structures in place offering guidance. The Health & Safety Executive have produced a four step guidance document to assist, with a clear message that it should be driven from the top. This document (in pdf format) can be downloaded from the link below.
Health and safety law states that organisations must:
- provide a written health and safety policy (if they employ five or more people);
- assess risks to employees, customers, partners and any other people who could be affected by their activities;
- arrange for the effective planning, organisation, control, monitoring and review of preventative and protective measures;
- ensure they have access to competent health and safety advice;
- consult employees about their risks at work and current preventative and protective measures;
Failure to comply with these requirements can have serious consequences - for both organisations and individuals. Sanctions include fines, imprisonment and disqualification.
Consider also the following:
If a health and safety offence is committed with the consent or connivance of, or is attributable to any neglect on the part of any director, manager, secretary or other similar officer of the organisation, then that person (as well as the organisation) can be prosecuted under section 37 of the Health and Safety at Work Act 1974.
Those found guilty are liable for fines and, in some cases, imprisonment. In addition, the Company Directors Disqualification Act 1986, section 2(1), empowers the court to disqualify an individual convicted of an offence in connection with the management of a company. This includes health and safety offences. This power is exercised at the discretion of the court; it requires no additional investigation or evidence.
Individual directors are also potentially liable for other related offences, such as the common law offence of gross negligence manslaughter. Under common law, gross negligence manslaughter is proved when individual officers of a company (directors or business owners) by their own grossly negligent behaviour cause death. This offence is punishable by a maximum of life imprisonment.
What does this mean for Drivers and Operators?
Firstly, bear in mind that the very essence of this legislation is the duty of care to members of the general public and the work force no matter what the size. Unfortunately, not all operators enter into all aspects of their duties in the same manner; there are in some cases serious shortcomings where compliance is concerned, which doesn't bode well for the industry as a whole.
Our view is a simple one:
- as a company, you accept a duty of care to all;
- you're diligent and thorough in your commitment to ensuring that risks are assessed, your staff are trained and you have an audit trail which can be followed and any risks identified are dealt with;
In much the same way as you comply with current transport legislation that affects you, if you get the nuts 'n bolts of this correct - and you won't get it 100% right all of the time - then you'll have satisfied the criteria and will have nothing to fear. Pay lip service to it, and you'll get everything you deserve.
Drivers should have nothing to fear from this, as long as they themselves adhere to the legislative requirement and the procedural practices that are put in place by their employers. If a driver finds that his employer is doing nothing to support and protect him/her, then they have a duty themselves to take the matter further and should be fully supported by the powers that be outside of their workplace. No driver should be forced to break the law or endanger the lives of themselves or others.
The best advice here, is don't panic, have a good look at your operation and identify any weak areas. The best tool to use in this endeavour is commonsense, if it poses a danger (no matter how small) to you, then it needs a risk assessment. This does not have to be complicated, there are tools and further guidance within this section of the website to assist you in compliance.
All operators should already be complying with the basic requirements here anyway, by virtue of systems that should already be in place, such as:
- daily Walk Round Check or first inspection;
- safe, evenly distributed and secure loading of vehicles;
- regular Preventative Maintenance Inspections (PMI's);
- quarterly Driving Licence checks
- tachograph training and compliance with EC561/06;
- manual handling training;
- risk assessments on Loading, unloading, movement of goods by fork truck etc. However, bear in mind that Risk Assessments also include the vehicle and driver 'on the road' and at your clients premises;
- drivers/warehouse operatives procedural practices and sign off sheets etc;
To ensure any procedure is robust enough to pass any test, try it out yourself, ie; the daily walk round check. Get a simple form (see the one in the appendix of the DFT's guide to Road Worthiness and Maintenance) or get one of the daily check books available from transport stationery suppliers. Do the checks yourself and see how long it takes you, ticking off the relevant items as you go. When you are satisfied it's been completed properly, set that time as the minimum requirement. Remember, this time must be shown on the tachograph chart/digital card as 5 or so minutes in other work mode before the vehicle moves at the start of each duty.
Ensure your drivers are aware of their responsibilities in this or any other safety related matter. Train them to do things correctly and make checks to see it's being carried out as instructed and in the proper manner.
Checking security and weight of the load is also an area where a good system will pay dividends. There are many types of load but the common thread is how it is secured in/on the vehicle. Ensure that any ropes, sheets, straps and chains are in good condition. Vehicle doors on rigids, drop sides and curtains are all sufficient for the task and well maintained.
These are simple examples of every day aspects of your operation, so they should come easily.
Driving on Company Business
Under the Corporate Homicide and Manslaughter Act it is evident that all companies large and small alike must adopt a risk assessment policy for all drivers of company and non - company vehicles where the same is used for company business. Whereas this has already received much attention in the fleet car sector, it could easily be overlooked in other sectors (especially Transport) where managers travel between depots/offices on company business using their own cars. The new Act, however, would seem to include all persons who drive any company vehicle, or their own vehicle on company business. To this end both driver and vehicle should be fit for purpose, which implies that the driver should;
- hold a full drivers licence for the class of vehicle;
- be properly insured and fully road legal;
- the vehicle should be in a roadworthy condition (including a current MOT test certificate) and being properly maintained;
- the driver should be physically fit (not tired or ill) and not taking medication that could impair his actions;
- any driver requiring them should drive with prescribed spectacles;
For the most part, all regulated vehicles and their drivers are covered by the provisions of Drivers' Hours' Regulations and the Goods Vehicle's Operators Act 1995, and as such the points above are already in place. However, Transport Managers or those within the organisation with responsibility for transport matters should ensure that ALL DRIVERS are aware of company policy on this subject, and this should also include members of the sales/service teams and company directors.
Any company policy to cover this area should also include a mobile phone section, advising that phone calls should not be made or received whilst driving unless it is with the use of an approved hands free device. The best practise in any event is to park safely and deal with any message seperately from the act of driving.
Companies must cause a check to be made on all who drive on company business and keep records of such checks similar to the Risk Assessment which can be downloaded at the link below.
There is no doubt that this piece of legislation will be tested, and much more will be written about it. If you have any doubts get advice from your in-house people, a consultative authority such as the Health & Safety Executive or any other professional body that is available to assist/advise you. Most importantly, don't do things on a 'wing and a prayer', peoples lives hinge on your professionalism.
To read more about the Act and access the invaluable resources on the Health & Safety Executive website, please use the links below.
Corporate Responsibility - HSE
Corporate Manslaughter - Ministry of Justice
Corporate Manslaughter & Homicide Bill 2007 - The Act