Corporate Manslaughter for Construction Deaths: Is prosecution just a matter of time?
With construction fatalities increasing by nearly 28% over last year according to the HSE's recently released figures, new legislation ensuring that health and safety issues are put to the top of the industry's agenda is piling up. The Construction (Design and Management) Regulations 2007 were introduced in April 2007 and the Corporate Manslaughter and Corporate Homicide Act 2007 follows hot on its heels.
Why care?
The Corporate Manslaughter and Corporate Homicide Act makes it easier to prosecute large as well as small organisations for corporate health and safety failings leading to deaths, whether of employees or the public at large. Corporations will be liable for the way in which its senior managers run the organisation's activities, so liability will no longer be dependent on establishing that one director, who was the "controlling mind of the company", was personally guilty of manslaughter. A collective failure by senior management will satisfy the test for the offence. Senior management will clearly be under greater scrutiny than ever before. Individual directors cannot be imprisoned if a company is convicted of corporate manslaughter, but the company will face an unlimited fine, "name and shame" orders requiring it to publicise its offence and remedial orders.
It is clear that, from April 2008 when the Act comes into force, it will be more likely that a work-related death will attract a corporate manslaughter charge, with all the potential for damage to reputation, increase to management stress and disruption to business activity that such an investigation involves.
What steps should you take?
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Review the relevant Health and Safety Guidance (including the CDM Regulations 2007 (see the extract for more details)) applicable to your business. |
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Establish what industry standards should be applied and ensure that your organisation at least meets such standards. |
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Compare policy and procedure documents to actual activity - ensure that requirements in such documents can and are being achieved. Good intentions are worthless if policies are not implemented, and companies might find that meaningless policy documents are used against them. |
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Assess and, if necessary, improve corporate culture regarding health and safety compliance. |
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Keep risk assessments up to date. |
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Identify who should fall within the definition of "senior management" and ensure that individuals are aware of their responsibilities. Only those who are competent and with sufficient authority, time and resources to deal with health and safety responsibilities should do so. Consider whether training on health and safety issues is required. |
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Increase board level review of health and safety compliance. |
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Insurance - note fines cannot be insured against. Consider whether cover is adequate for the costs of defending against such a prosecution. |
No new duties have been imposed by this legislation, but the new offence and its penalties will bite hard. With the increasing number of workplace fatalities, the odds are stacked against the construction industry.
For further information, you can read more here.