Confusion breads doubt on effectiveness of new Corporate Manslaught law

24 April 2008

A joint PFM/Elementus survey of FM and property professionals reveals that although awareness of the Corporate Manslaughter and Homicide Act was almost universal, this was no thanks to the efforts of the official Government communications machine.

The Elementus and PFM survey on Corporate Manslaughter and Corporate Homocide Act 2007 undertaken in February and March this year, revealed that there is clear ambivalence about this legislation's effectiveness largely because the government publicity had failed to explain the Act effectively. The survey showed that 60 per cent of respondents felt that government publicity had been 'bad' or 'very bad' – only 1 per cent thought they did 'well'.

Copies of the joint Elementus/PFM survey report can be downloaded free from the Elementus website at www.elementus.com/information.

Greg Davies, Head of Service Development at Elementus says the findings suggest that a real lack of understanding has created clear ambivalence about the legislation’s effectiveness.

He said, “There is poor comprehension of the law and poor appreciation of its full implications including that it is now a ‘grave criminal’ offence and anyone with manager (or more) in their title can be held responsible. Accidents do happen, and this fact is recognised by the enforcing authorities. But equally death and serious injury has resulted through companies’ ignorance, negligence or connivance in disregarding their health and safety obligations. Historically, where this occurs, the disparity has been that small companies are successfully prosecuted and large companies are not. This is because of the notion of controlling/directing mind, where the offence had to be traced back to individuals who were solely responsible for the unsafe or dangerous act which caused the death.

“The Corporate Manslaughter and Corporate Homicide Act 2007, introduced on 6 April 2008, is designed to make it easier to convict all culpable organisations. It does not lower the threshold of guilt or change the liabilities of individuals (either employers or employees) but it does criminalise any organisation in which “its activities are managed or organised“ causing a death, and this amounts to a “gross breach of a duty of care” to the deceased. It also changes the common law principles of manslaughter (which were developed to deal with individuals) that were difficult to apply to the prosecution of companies and has made safety “a grave criminal offence”.

Under the new act the sanctions available to a judge are a monetary fine a Remediation Order and a Publicity Order. For those organisations where H&S is managed as part of the organisational culture the new Act should hold little fear. For those where a “write a policy and tick a box” culture is adopted, a rethink of their strategy may be needed. This is because Courts will have the ability to look at management systems and practices across the organisation and ask questions such as:
 When was the last time H&S was discussed as part of a senior management meeting?
 When was the last time policies were reviewed?
 How widespread was the communication, co-operation and control of procedures and practices within the organisation?
 To what degree were poor practices ignored/tolerated?

Organisations should look at their core business and the inherent risks involved – “those that form an intrinsic part of the business, i.e. for roofers and scaffolders – working from heights” – and put in place robust systems of management. They should look to eliminate or manage incidental risks (those that exist in the business but do not form part of its core, i.e. legionella in building water systems, fire in most office environments) to minimise risks. Taking a pragmatic view, regularly reviewing systems to reflect and accommodate any change, and maintaining clear lists of responsibilities, working procedures and controls, will usually provide compelling evidence to external enforcers that an organisation is aware of its obligations and is looking to comply with them. This also reflects well on the organisational culture in supporting corporate responsibility initiatives, and can add value rather becoming a cost.

Good health and safety doesn’t happen by accident. Poor health and safety however often leads to accidents, and from now on if that accident causes fatalities the consequences could be severe for the corporate, as well as the individual.