Social stigma is the real punishment in corporate killing law

The Corporate Manslaughter Act has stopped short of imposing jail terms on executives if their company’s negligence should cause someone’s death. However Faizal Essat of Andersons solicitors in Nottingham, says businesses still face unlimited fines and the blaze of bad publicity if tragedy should strike.

No company would relish the prospect of deliberately publicising how it caused someone’s death through its gross negligence and how much it has been fined for its corporate failures.

That, however, is precisely what companies found guilty of corporate manslaughter can be called upon to do in future. The Corporate Manslaughter Act, which received the Royal Assent at the end of July, was criticised by some for letting directors off the hook by removing the threat of prison sentences, but the new legislation still contains much for firms to fear.

It will now be easier to convict companies of manslaughter if their gross negligence leads to someone being killed. They face unlimited fines if it’s found that they caused death due to their gross corporate health and safety failures. Firms can also be ordered to take remedial action to rectify the failures that led to the death.

The court may also order them to publicise the case giving details of what happened and how much they were fined. The damage to a firm’s reputation and brand from such bad publicity could be enormous.
The Government hopes the new law will force company executives to take their health and safety obligations seriously.
The Act removes what used to be a major stumbling block in prosecuting a company for manslaughter. To secure a conviction, it was necessary to prove that all the gross negligence that caused the death could be laid at the door of at least one senior manager or director. This made no allowance for corporate system failures. Indeed, the piecemeal management approach that may have led to the tragedy could be the very same characteristic that prevented prosecution because the responsibility could be shared between several people, none of whom could be singled out as the one guilty of gross negligence.

This was the reason that prosecutions failed in cases such as the Southall rail disaster in 1997 in which seven people were killed. It proved impossible to find one senior manager who was informed and involved enough to be held responsible.

The Act focuses on failures by senior management but that doesn’t mean that firms could avoid criminal liability by delegating responsibility for safety issues to lower or middle management. In fact, such action could be counter productive as it may be used as evidence of gross negligence in itself.

Employers concerned about the impact of the Act can be reassured that there is only a risk of prosecution for manslaughter if the company has been guilty of gross negligence.

Even if a tragedy occurs, it is still unlikely that a firm will be prosecuted if it can show that it took a responsible attitude to safety, put correct policies in place and gave staff the appropriate training. Fostering an attitude that puts safety before commercial considerations is also important. For example, if equipment should be shut down while maintenance is carried then that is what should happen. Don’t be tempted to cut corners by leaving some machinery running on the basis that “that’s how we’ve done it in the past and it’s never been a problem.”

Directors who are still tempted to cut corners should remember that although the new Act does not increase liability, they can still be held to account as individuals through health and safety laws and the common law of manslaughter.

The Corporate Manslaughter Act will come into effect on 6th April next year. Firms who haven’t already reviewed their safety policies and management systems for ensuring compliance should consider doing so as soon as possible.

Faizal Essat is part of the Commercial Litigation team at Andersons Solicitors specialising in a wide range of work including Intellectual Property, Personal Injury and Disputes to name a few. He can be contacted on 0115 988 6707 or by emailing Faizal Essat