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“There are huge numbers of managers out there who understand all too well the risks that their staff take to make the system work. And as long as the system is working and no one is seriously injured, they will turn a blind eye to the irregular, and in some cases, dangerous and illegal practices that are being used. Yet, should someone be seriously injured, or even die, then questions will be raised by the very people who know all too well what is happening and why. For what purpose? To cover their backs – and in some cases this means that their backs are covered at the expense of the very staff who make an unworkable system work.”
[Extracted from ‘Managing the Monkey - How to Defuse the Conflicts That Can Lead to Violence in the Workplace by Mark Dawes – November 1999].
After almost 10 years of debate, and 7 years from the publication of the book Managing the Monkey, the Government finally published the Corporate Manslaughter and Corporate Homicide Bill on the 21st July this year.
This means that Courts will soon be able to find an organisation guilty of the new offence if someone has been killed as a result of the gross failure of its senior managers who have failed to ensure safe working practices for their employees.
The new Bill draws on the Law Commission’s proposals, outlined in their report: Legislating the Criminal Code: Involuntary Manslaughter [Law Com No: 237], and proposes new offences which would be based on failures in the way an organisation’s activities were managed or organized.
Management Failure
This is referred to as a “management failure” – an approach that focuses on the arrangements and practices for carrying out the organisation’s work, rather than any immediate negligent act by an employee (or potentially someone else) causing death.
Under the proposed legislation, an organisation is guilty of the offence of corporate manslaughter if the way in which any of the organisation's activities are managed or organised by the senior managers:
a) causes a person's death; and
b) amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.
Gross Breach
A gross breach is a breach of a duty of care by an organisation that falls far below what can reasonably be expected of the organisation in the circumstances.
To decide whether a ‘gross breach’ has taken place, the jury must consider whether the evidence shows that the organisation failed to comply with any relevant health and safety legislation or guidance. In addition, there a number of other factors which the jury will also have to consider, such as whether or not senior managers sought to cause the organisation to profit from its failure, i.e., that they deliberately cut corners to reduce costs or boost profits.
Possible future implications
These new proposals have wide ranging implications and should be a wake up call for all members of senior management whose staff (employed or contracted) take risks on behalf of their company or who are exposed to the risk of violence as part of their employed role.
This includes all staff where the inference is that they may have to use physical force for enforcement or defensive purposes, i.e., to either stop or prevent harm to self, others or damage to property and / or make arrests, but are not given suitable and sufficient training which could result in the death of the person being restrained or even staff, for example;
§ Door supervisors working on their own due to inadequate staffing levels on busy pub or nightclub doors who may be expected to control and / or restraint aggressive and violent individuals;
§ Care staff expected to control service users with inappropriate or ineffective training and / or inadequate staffing levels;
§ Retail store staff who are expected to prevent / manage theft, and even make arrests, without proper policy, guidance and training;
Companies found guilty of corporate manslaughter will face an unlimited fine, and the Bill also gives the courts power to impose a remedial order – which can already be imposed for health and safety offences – requiring the company to address the cause of the fatality.
There will be those who blame the law and who will come up with arguments as to why the new proposals are a burden. However, if all employers did what any responsible employer should do there would be no need for such laws. Would there?
On 6th June 2000 Anthony Scrivener QC was the keynote speaker at the Annual Symonds Safety Lecture at the Institution of Civil Engineers. The lecture was entitled ‘Corporate and Personal Manslaughter: Where the Offence is – Let the Great Axe Fall. His talk began with the following opening statement which sums up the situation beautifully:
“Although in this short address I will refer to the Government’s new proposals for corporate manslaughter I would wish to drive home a clear message to all of those involved in the management of companies.
Even without these reforms there is an unstoppable movement towards using the full force of the criminal law against companies and executives forming the management of companies where death or injury is caused by serious negligence.
They are out to get you and that is the clear message you should take back with you from this meeting to your boardroom.
If you ignore the trend then you do so at you peril.”
Anthony Scrivener QC Tuesday 6th June 2000
The Bill will also apply to Crown bodies, such as the MOD, one of the major issues in the debate leading up to its formation and is likely to be passed through Parliament before 2008.
Let us reduce your liability by going that extra mile
We have been helping protect our clients for many years now by always keeping abreast of the law and any potential legal developments. To this extent we were working with the potential implications of the Human Rights Act years before it became part of UK statute and we have been doing the same since the Law Commission published it’s report on the proposed Corporate Manslaughter Bill in 1996.
In addition our training has also been subject to legal audits and health and safety risk assessments and reviews ensuring that we work within the requirements of the appropriate legislation.
To date we have successfully supported our clients in court and in industrial tribunals by being able to demonstrate due diligence and competence in our approach to our training delivery.
For information on our range of courses that will help your organisation reduce their liability click on the links below:
§ 5 Days - NFPS Physical Restraint Instructors Qualifying Course -including the BTEC Level 3 Advanced Award in Physical Restraint Practice - more info
§ 3 Days - BTEC Level 2 Intermediate Award in Physical Restraint Practice - more info
§ 5 Days - BTEC Level 3 Award in the Delivery of Conflict Management Training - more info |
