The Corporate Manslaughter and Corporate Homicide Act 2007 was a landmark in law. Companies and organisations can now be found guilty of corporate manslaughter as a result of serious management failures resulting in a gross breach of a duty of care. Alistair Moffat considers some of the implications for constractors.

When engaged as a company safety adviser I often dispatch senior board members on directors’ safety awareness courses. These are usually day courses which follow a standard agenda, in summary, compliance fuelled through fear of a custodial prison sentence.

Stemming from the course is often a frame mounted certificate proudly displayed in the board room. My intention, however, often naively misplaced, is to engender a robust H&S culture from the top down. The impact from the course normally fades quite rapidly and a common course handout, Leading H&S at Work (INDG 417), never seems to surface from the MD’s pending tray. Furthermore, the ‘must do’ list to guard against corporate manslaughter never quite makes the H&S committee meeting agenda; although all agree it is a laudable piece of legislation.

After some 14 years in the making, 2007, saw the passage of the UK’s Corporate Manslaughter and Corporate Homocide Act, which came into force in 2008. Since being lodged on the statute books only three convictions have been successfully upheld but none of these resulted in a custodial prison sentence.

Historically, under the common law it proved extremely difficult to secure a conviction for gross negligence manslaughter against a company because the law required that before a company could be convicted of the offence it had to be established that an individual, senior enough to be deemed part of its ‘controlling mind’, had himself been charged and convicted of the offence. The company’s guilt or innocence was entirely dependent upon that of the individual.

On the international scene this also appears to be the case with a dearth of convictions worldwide. Whilst this is understandable in third-world countries where legislation is scant, you would have thought the western world would be more accountable for corporate negligence?

A school of thought suggests that the international judicial system does not see death at work as a criminal offence in the same way as bank robbers or muggers, after all they’re just employers trying to do job to keep people in work.

Mark Twain once remarked “It ain’t those parts of the Bible that I can’t understand that bother me, it is the parts that I do understand.”

To this end, if I was a managing director of a medium sized drylining company I would not be over concerned about gaining an understanding of the Corporate Manslaughter and Corporate Homocide Act. However, I would be focused on the consequences of not complying with Health and Safety at Work Act, especially Section 2 (as that is what the majority of prosecutions for negligence are based on).

Equally a good grounding and application of sections 3 to 14 (plus 19) of the Management of H&S at Work Regulations (MHSWR) will keep them from appearing before the courts.

I would also ask the respective company safety adviser to hold a forum with the supervisory grades (site managers and working foreman) to ensure they are aware of being more likely to be labelled the ‘controlling mind’ when a piece of cemboard falls through the scaffolding to decapitate a groundworker five levels below.

Undoubtedly, any resulting investigation would initially focus on S3 (risk assessment), S3 (principles of prevention), S4 (arrangements ╨ or safe system of work), S11 (co-operation and co-ordination) and S13 (capabilities and training) of
the MHSWR.

It is my personal belief that if the MHSWR were properly implemented you would not need that much neglected and misunderstood statutory instrument, the Construction (Design & Management) Regulations. But I shall withhold my diatribe on that piece of legislation until another time.