The events aboard the Costa Concordia on 13th January raise questions not just about Captain Schettino’s actions but also about whether the Company itself could face any criminal charges.
Italian law does not mention corporate manslaughter explicitly however in the UK the Corporate Manslaughter and Corporate Homicide Act 2007 creates a means of accountability for deaths caused by very serious management failings.
In February 2011, Cotswold Geotechnical Holdings was the first UK Company to be convicted of corporate manslaughter and fined £385,000.
In the trial, the jury took just one and a half hours to find the Company guilty of failing to ensure the safety of one of its workers who died when a pit collapsed on him.
The conclusion was that the substantial cause of his death was the failure of the company to manage its affairs so as to comply with its legal duty to ensure that his health was not put at risk.
How does this relate to my organisation?
Fatal accidents at work are often associated with certain types of industry such as construction, manufacturing or engineering and of course carry higher risks in many respects. However all organisations, no matter how large or small, have responsibilities for health and safety and there are many hazards within an office environment which businesses need to be aware of.
In addition to obvious hazards such as slippery floors or open file drawers, a modern office may contain serious fire or electrical hazards or risk of dangerous fumes such as carbon monoxide.
Here we take a look at what Corporate Manslaughter Act is, its powers and what health and safety issues organisations need to take into consideration.
What is the Corporate Manslaughter Act?
Following the introduction of the Corporate Manslaugher and Corporate Homicide Act 2007, corporate liability is now based on the ways in which an organisation’s activities are managed and organised, meaning that it is easier for the authorities to prosecute companies and large organisations.
Can directors, board members or other individuals be prosecuted?
The offence is concerned with corporate liability and does not apply to directors or other individuals who have a senior role in the company.
An organisation will be guilty of an offence if the way in which its activities are managed or organised by senior management causes a person’s death and amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.
Therefore senior managers really need to look at how their health and safety practices are monitored, carried out and followed up by those responsible in the organisation.
An organisation’s ‘senior management’ is defined as the people who play significant roles either in making decisions about how all or a substantial part of its activities are to be managed or organised or the actual managing/organising of all or part of those activities. So as well as being able to prosecute organisations individuals are still liable.
Existing health and safety offences and gross negligence manslaughter continue to apply to individuals. Prosecutions against individuals will continue to be taken where there is sufficient evidence and it is in the public interest to do so.
Health and safety legislation
Under the Act, health and safety legislation means “any statutory provision dealing with health and
safety matters” including food safety and workplace safety as enforced by HSE and local authorities.
Juries will be required to consider breaches of health and safety legislation in determining liability of companies and other corporate bodies for corporate manslaughter/homicide.
Juries may also consider whether a company or organisation has taken account of any appropriate health and safety guidance and 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 serious management failure or have produced tolerance of it.
To what extent does your organisation take account of health and safety matters?
=623; Have you appointed someone to help manage your health and safety duties with the necessary
skills, knowledge and experience?
=623; Do you have a Health and Safety policy for your business?
=623; What first aid arrangements do you have in the workplace?
=623; What health and safety awareness training takes place and how often is this done?
=623; Have you thought about what in your business might cause harm to people and whether you are doing enough to prevent that harm?
=623; Have you considered everyone who could be harmed? (for example, new or expectant mothers, people with disabilities, home workers , drivers, contractors)
=623; How do you control those risks and put the right measures in place?
=623; When was the last time a risk assessment was carried out in your business and who is responsible for making sure this happens?
Organisations need to take their obligations under health and safety law seriously in order not to be in breach of the Act.
It is advisable to review your Company health and safety policy, keep your organisation’s health and safety management systems under review and assess how activities are managed and organised.
By confidently answering the questions above your organisation will be going a long way towards reducing the risks of workplace dangers and providing a safe working environment.
Other points to consider are making sure you have a Health and Safety Law poster on display where your workers can easily read it and protecting yourself from compensation costs with Employers Liability Insurance.
What penalties does a company or organisation face?
Penalties will include unlimited fines, remedial orders and publicity orders.
Remedial orders – will require a company to take steps to remedy any management failure that lead to a death.
Publicity orders – the court can also impose an order requiring the company or organisation to publicise that it has been convicted of an offence, the amount of the fine imposed and the terms of any remedial order made.
If you would any advice or help with the implementation/review of health and safety policies, carrying out risk assessments or would like to make a comment about this newsletter please email us at: julie.ware@peoplebusiness.co.uk or call us on 01932 874944.
