By Michael Nadin - Employment Law Associate P&O Ferries’ controversial mass sacking of employees on…
PLEASE NOTE: Information in this article is correct at the time of publication, please contact DFA Law for current advice on older articles.
This article sets out the factors which can lead to your business being prosecuted for corporate manslaughter and the penalties for breaching the legislation.
What are the offences?
Your business will be guilty of a corporate manslaughter offence if the way in which your business’ activities are managed or organised causes a person’s death, the person’s death is the result of a gross breach of a relevant duty of care owed to that person, and the way in which your business’ activities are managed or organised is a substantial element of the breach.
Who does the offence apply to?
Corporate manslaughter legislation applies to all businesses operating in the UK. It does not apply to individuals (for example, company directors or managers). However individuals can be prosecuted for the offence of manslaughter by gross negligence.
If your business is prosecuted under corporate manslaughter legislation, it (and the company directors and managers) could still be prosecuted for breaches of health and safety or other laws.
What constitutes a gross breach?
"Gross breach" means conduct that falls far below what can reasonably be expected of your business in the circumstances. A jury must take a number of factors into account when deciding whether your business is guilty of corporate manslaughter: whether your business was in breach of health and safety legislation; how serious the management failure was; and how much of a risk there was of death occurring.
The jury must also take into account a number of other factors, including: any health and safety guidance relating to the breach; and whether there were any attitudes, policies, systems or accepted practices in your business that were likely to have encouraged a management failure.
What types of duty of care are covered?
The legislation deals primarily with health and safety matters, but is not limited to these. It may be possible to prove a duty of care in a different context (for example, under environmental law). The types of duty of care covered include a duty owed by a business to employees, a duty owed as an occupier of premises and a duty owed in connection with: the supply of goods or services; carrying out any construction or maintenance operations; or carrying out any other activity on a commercial basis.
What are the penalties for breaching the legislation?
A conviction for corporate manslaughter could lead to the imposition of an unlimited fine on your business. According to the sentencing guidelines, a convicted business should receive a fine that will rarely be less than £500,000 and may be in the millions of pounds.
Fines can be increased if there is evidence your business could have foreseen the accident and where breaches of rules were widespread within your business.
The court can impose a remedial order requiring your business to address specific failings involved in the offence. Because the court will not usually take into account any remedial costs when it assesses a fine, you may have to pay both a fine and the costs of improving your internal procedures to comply with a remedial order.
The court can impose a publicity order forcing your business to advertise that it has been convicted of corporate manslaughter. The order may include details of the conviction (for example, the amount of the fine and the terms of a remedial order).
Insurance cover will not be available to your business if it has been convicted of a corporate manslaughter offence. However, if you mount a successful defence, cover may be available for any legal costs your business has incurred. Make sure you check your position with your insurers.