In April 2008 a new Corporate Manslaughter law finally found its
way onto the statute book. It will no longer be necessary to prove
that an individual who could properly be identified as the
directing mind of an organisation is guilty of gross negligence.
Instead liability for the new offence depends on a finding of gross
negligence in the way in which the activities of the organisation
are managed.
Under the new law an organisation must owe a "relevant duty of
care" to the victim. In particular this includes duties owed to
employees, as an occupier of premises, in the supply of goods or
services or in the use or keeping by the organisation of any plant,
vehicle or other things. The explanatory notes to the Act make it
clear the new law will apply to both public and private
organisations.
The organisation must be in breach of that duty as result of the
way in which the activities of the organisation are managed or
organised- the management failure. A substantial element of that
breach must lie in the way senior management managed or organised
its activities. The failure must be gross in that it falls far
below what could reasonably be expected.
The law defines senior management as anyone who plays a
significant role in the making of decisions about how the
organisations activities are to be managed or organised; or in the
actual managing of those activities. This covers both those in the
direct chain of management as well as those in strategic or
regulatory compliance roles.
In schools it is likely to be the local authority and governing
body which sets the strategic agenda in terms of the schools
management and operational managers such as head teachers and heads
of department who are engaged in actually managing the schools
activities.
No individual can commit an offence under the new legislation.
However, the existing laws relating to manslaughter and offences
health and safety legislation provide for individual liability in
any event and remain unchanged. Individual prosecutions have been
and can still be brought against head teachers for example under
Section 7 the Health and Safety at Work Act 1974 alleging a failure
to take reasonable care for staff or children or against senior
managers under Section 37 of the 1974 Act.
When considering any failure under the new law the jury must
consider to what degree the organisation was in breach of its
obligations under health and safety legislation and how much of a
risk of death that failure posed. It may also consider the extent
to which the evidence shows that there were attitudes, policies,
systems or accepted practices within the organisation that were
likely to have encouraged any such failures or to have produced
tolerance of it and regard can be had to any health and safety
guidance that relates to the breach.
The Ministry of Justice “Understanding Corporate Manslaughter
and Corporate Homicide Act 2007” guidance note states:
“ [The Act] is an opportunity for employers to think again about
how risks are managed. The offence does not require organisations
to comply with new regulatory standards. But organisations should
ensure that they are taking proper steps to meet current legal
duties…”
This highlights the point that there already exists significant
legislation which deals with health and safety and with which
schools have had to comply for many years. The new Act builds on
that and is intended to complement and not replace such
legislation. Likewise those who prior to the commencement of the
new law were complying with health and safety legislation and
guidance should have nothing to fear.
The sanctions following conviction are significant. This
includes an unlimited fine, a Remedial Order which requires the
organisation to address the deficiencies in health and safety
management that lay behind the breach and a Publicity Order which
will mean that the organisation has to publicise details of the
offence.
Whilst each case will turn on its own facts the definition of
senior management is broad enough to include those in senior
operational management and those carrying out monitoring or
strategic roles. The strategic approach of a school to health and
safety including its arrangements for risk assessment and
monitoring and auditing its processes will be under particular
scrutiny.
On the basis the prosecution must call evidence of the failure
of senior management it is likely during any corporate manslaughter
investigation that the police will wish to interview members of the
local authority, governors and staff. If a school were prosecuted
such individuals could then become embroiled in giving evidence at
any public trial. The potential reputational damage of such an
exercise both corporately and individually is all too obvious.
With a view to avoiding the serious repercussions of a
prosecution schools may wish to satisfy themselves that they have
reviewed the following:
- Health and safety guidance applicable to the operation of their
school.
- Ensuring health and safety management systems identify proper
policies and procedures and ensuring that roles and
responsibilities are understood.
- The structures in place to identify risks and put in place
procedures to manage them effectively.
- Reporting procedures to the local authority or governors – in
particular on matters relating to health and safety.
- Systems for ensuring recommendations from serious untoward
incidents are implemented.
- Systems for recruitment of competent staff, ongoing training
and supervision.
- Ensuring job descriptions specify relevant health and safety
responsibilities.
- The health and safety culture within the school, with a view to
encouraging a positive and responsible approach to health and
safety. In particular no-one should take on health and safety
responsibilities that they are not competent to undertake.
Should the worst happen and there be a fatality schools should
be in a position to justify their health and safety procedures and
policies. As indicated above a clear audit trail is vital to this.
Likewise schools should expect a significant investigation.
Following a fatality both the Health and Safety Executive and
Police will be involved in any investigation and will expect to
speak to staff at all levels and examine relevant paperwork. The
question of legal representation of the organisation and
individuals inevitably arises and the school should be prepared to
act quickly to ensure that the investigation is handled sensitively
and carefully but also to ensure that as far as possible the school
puts forward a robust defence of their actions and policies.
An investigation by the police and HSE following a fatality can
take many years to conclude - up to five years or more from
accident to trial. Likewise the process of investigation may be
ongoing alongside an internal investigation, internal or external
disciplinary proceedings, a civil claim for compensation and
subject to a decision to prosecute for manslaughter an Inquest. It
is recommended that schools put in place a strategy to deal with
any such investigation which should also consider the question of
funding taking into account the fact that different parties may
need to be separately represented throughout the process.
In conclusion whilst the Act does not require organisations to
comply with new regulatory standards it is a warning to those who
are not complying with health and safety laws and guidance that the
consequences can be very severe.
Return to Headlines