To the relief of directors everywhere there are now no plans to prosecute individual directors though companies themselves can be prosecuted for corporate negligence and companies can receive unlimited fines.
One concern however is whether the new law as proposed might make companies over-cautious. Many directors think it could have this effect so leading to a stagnant UK economy. Trade unionists however feel that such claims are unfounded and over-stated.
The new test will be one of “management failure” and therefore focuses on organisation and management of systems and procedures, checks and audits and the role of senior, not junior, managers and directors. It seeks to analyse whether the conduct of the organisation fell far below what could reasonably have been expected and whether there were “attitudes, policies, systems or accepted practices” that were likely to lead to breaches of health and safety law.
All this adds to the common sense view that you should have appropriate documents in place that operate to guide your company through the H & S maze plus it is prudent to carry out periodic checks both internally and externally to feel assured that lip service is not just being paid.
Currently the law stands as unamended-corporate manslaughter occurs when a company is grossly negligent and causes the death in the course of its operations. It is a parasitic offence since it needs to identify a superior officer in the company guilty of manslaughter. Larger companies can hide behind the layers of bureaucracy. Smaller companies are conversely more at risk. A further problem is the need to find the “controlling mind” since some deaths result from a lack of individual fault but more of aggregate or systematic failure. Since 1992 only 6 out of 34 cases in fact have ended up with a conviction.
In lieu of corporate manslaughter offences companies can be prosecuted more easily by the HSE and fined heavily. Further, directors of such companies can be disqualified under the Disqualification Of Directors Act 1986 so it is best to seek advice from the HSE website to manage the risk successfully.
