Corporate Manslaughter - Directors Beware
Apr 27, 2010
When the Corporate Manslaughter and Corporate Homicide Act 2007 (CMCHA) was finally implemented many company directors may have breathed a sigh of relief. Despite calls for corporate accountability at board level, the Act was designed to prosecute organisations and not individual directors. Although companies could be fined and have publicity orders imposed on them, individual directors could not be sent to prison.
The first corporate manslaughter case is currently going through the courts but has been delayed until October 2010 due to the ill health of the company’s Managing Director. The case involves the death of an employee of Cotswold Geotechnical Holdings who was killed when an excavation he was working in collapsed.
What may have been missed with this focus on corporate manslaughter is that the Managing Director is charged with manslaughter by gross negligence and also a health & safety offence in his own personal capacity. He faces possible imprisonment or substantial fines should he be convicted.
Company directors need to be aware of their potential individual liabilities should accidents occur as a consequence of their decisions or negligence. Decisions regarding expenditure on health & safety training, maintenance and repair of equipment and actions to support a good health & safety culture within an organisation, should all be carefully considered. A lack of knowledge or lack of awareness of health & safety legislation cannot be used as a defence.
The current Government are still uncertain about the merits of imposing positive statutory duties on directors to ensure good health & safety management. Opponents to further legislation claim there is guidance available for directors on health & safety management and, as we can see in the CMCHA case above, existing legislation is already in place for directors to be prosecuted. The Government is likely to consider both legislative and non-legislative options in the future.
As prosecutions under the CMCHA and other health & safety legislation can have severe consequences for organisations as a whole, and for directors at a personal level, health & safety management should appear as a regular agenda item at board level meetings. Wilby Risk Management recommend that companies appoint a named director with health & safety responsibilities to champion a positive health & safety culture and protect the employees and directors alike.
Where a company lacks sufficient competence in house, assistance should be sought from trade bodies, consultants or similar organisations to help ensure the organisation does not find itself in the unenviable position of Cotswold Geotechnical Holdings and its managing director.
