David Egan, partner and head of Health and Safety Law at Irwin Mitchell, discusses the Corporate Manslaughter and Corporate Homicide Act, looks at the impact it could have on bosses and their businesses - and why they must urgently put their health and safety house in order
The Corporate Manslaughter and Corporate Homicide Act 2007 becomes law on the April 6.
It has been a long time coming, with many believing it would linger in Parliament and then, eventually, be forgotten about.
This long-awaited piece of
legislation is the culmination of years of campaigning by government
ministers and trade unions.


However, while many claim this is a significant legal landmark, others have argued it does not go far enough.


The act's detractors say that
punishments for those found guilty of causing deaths in the workplace should be tougher.


Whatever your opinion of the act, it is undeniably a wake-up call to businesses to get their health and safety houses in order.
Businesses must invest in
appropriate and relevant management systems to protect their workforce - and avoid potentially devastating consequences.
The act essentially puts the law on corporate manslaughter on to a new footing.
The key point is that employers will fall foul of the act if 'the way in which senior management
organises or manages their activities causes a person's death and this amounts to a gross breach of a
relevant duty of care to the deceased'.


Organisations covered by the act include corporations, limited liability partnerships, and even police forces.
The act was not passed to create additional legislation for offences by individual directors or employees of a company. This will still be covered by existing legislation.
The new act is aimed at cases where management failings are such that it is the organisation, rather than an individual, that will face prosecution.
It is the organisation's conduct that will be placed under the legal microscope.
The court will be concerned with the most serious incidents of
management failure that result in death.


The act defines senior management as those who play significant roles in either the making of
decisions about how the whole, or a substantial part, of the organisation's activities are managed or organised, or the actual managing or organising of those activities.
This will not only include those with senior operational management roles.


This also includes central financial or strategic roles. Failures by senior managers to manage health and safety adequately - including through inappropriate delegation of such matters - could lead to
prosecutions. The point is senior managers cannot delegate away their responsibilities.
Once the court has established a substantial failure at senior level, the jury must consider whether that conduct has fallen far below what could have been reasonably expected. In other words, whether there has been a gross breach by the organisation of a relevant duty of care to the deceased.


A duty of care is an obligation that an organisation has to take
reasonable steps to protect a employee's safety. These duties are wide ranging and each case will have to be determined on its own facts. For example, these duties exist in respect of the conditions of worksites, the systems of work, and equipment used by employees.
The duties referred to are not new creations under the act. These duties are already owed in the civil law of negligence and the new offence is based on these. To determine this issue, the jury will be invited to consider whether the
evidence shows the organisation failed to comply with any health and safety legislation and, if so, how serious that failure was.
This will involve the jury looking at the conduct of senior management and considering whether the evidence reveals, for example, too much tolerance to health and safety breaches, laissez-faire attitudes, and obvious examples of cost
cutting to avoid compliance.
If guilty of a breach of the act, the company will be fined.
The act also provides for the courts to impose a publicity order. This would require the organisation to publicise details of its conviction and fine.


These orders will not be effective on April 6, but will kick in once supporting guidelines are available.
In addition, the court can set a remedial order, which requires the
organisation to address the cause of the fatality. Once again, these will not be immediately available.
Needless to say, either of these orders could be extremely damaging to a company's reputation.
The courts will be looking at every workplace death with even more scrutiny once this act is in place.
If a company does find itself on the wrong end of a prosecution, it should understand that, in the event of a conviction, the stigma that inevitably attaches to a corporate killing will remain with the company. This is in addition to the personal distress such breaches cause.
Businesses must therefore ensure a strong health and safety culture exists within the organisation - starting from the top and
cascading down to junior levels of staff.


The act, when originally conceived, would have seen directors sent to jail for health and safety breaches leading to death.
Critics continue to argue that, until directors face imprisonment, an increase in the numbers of
avoidable and unnecessary deaths will continue.
It is therefore incumbent on
senior managers responsible for the welfare of workers to comply with health and safety legislation
If this does not happen, it is very likely that a much stricter piece of legislation will be adopted by
government - and businesses will be forced to do far more to comply.