‘Safety Bytes’ Legal update: Corporate manslaughter and Gross negligence manslaughter
In our ‘Safety bytes’ series, Irwin & Colton meet with Kizzy Augustin – health and safety expert at Mischcon de Reya.
Corporate manslaughter and gross negligence manslaughter are essentially, the same thing. They’re dealing with issues to do with a fatality. And the reason they are used more often now is because we have new legislation. And we also have new sentencing guidelines in relation to both.
Corporate manslaughter is increasingly used for the more serious end of incidents to do with the workplace. And I think, it’s really to make organisations more accountable. We had common law, which dealt with looking for one directing mind who has breached the law in some way, that has caused or contributed to the death of a person who is owed a duty of care. But for some reason, those prosecutions weren’t successful.
So in 2008, we had new legislation, Corporate Manslaughter and Corporate Homicide Act- which seemed to deal with the actions of senior management, as opposed to looking for one person. So I think, although it’s not used as much as it probably was anticipated it was going to be used, we’ve had quite a few, under 50, prosecutions since 2008.
And it’s used to make organisations more accountable by way of senior management failings, as opposed to one, in terms of gross negligence manslaughter. Again, it’s looking for those senior individuals who have failed criminally, by way of their health and safety management. And again, it’s making those senior individuals accountable.
Why are we seeing penalties increasing?
The sentencing guidelines have been increased for both corporate manslaughter and gross negligence manslaughter. Because it was felt that the terms of imprisonment and the fines that were being imposed were not consistent with other regulatory regimes. But also didn’t reflect the seriousness of the offenses being committed.
What we’ve seen is due to the introduction of new legislation, the maximum fines now being imposed for corporate manslaughter is $20 million, which is huge. And for gross negligence manslaughter, the suggestion is starting point of eight years imprisonment for those serious failings on the individuals part.
Are there any recent case examples?
We’ve had quite a few recent cases in relation to corporate manslaughter since the guidelines have come into play. One of which is the case of Martinisation Limited, which some people will know. It’s a central London company who were responsible for moving sofas in a block of flats. And unfortunately, due to the way in which they had planned their activities, two unfortunate workers died as a result of a fall from a balcony while moving a sofa.
Now the company itself were prosecuted for corporate manslaughter, and received a fine of £1.2 million pounds for each death. And the managing director himself was also prosecuted under health and safety legislation. And received 14 months imprisonment for his serious failings.
Now had this been probably, pre the guidelines, we may have been in a situation where the MD may have faced a suspended sentence. Or perhaps, some alternative penalty to imprisonment. I think we are now seeing a real increase in the levels of imprisonment imposed on senior individuals.
How can organisations mitigate penalties?
There are a number of things that organizations and its individuals can do to mitigate the likelihood of prosecution in the event of a health and safety failing. In a nutshell, having robust safety management systems in place. Ensuring that you’re reviewing your policies and practices frequently. Making sure that you’ve looked at what was known as the Institute of Directors, but also now Health and Safety Executive handout, which is the leading health and safety at work checklist. Which is very, very good to look at the way in which organizations should manage health and safety.
What steps should a company take following a serious incident?
When a fatality occurs, it’s probably one of the worst things that an organization and its individuals will go through. There’s a lot of panic. There’s having to deal with the reputational issues. And people want to limit the amount of risk that they’re exposed to. So one of the things is actually to limit the amount of information that goes out. Have a core team that manages the incident itself. And making sure internally, it’s reported to the right people.