Corporate manslaughter will become the “prosecution of choice”, aimed at employers of company drivers involved in fatal accidents from next April.
According to solicitor David Faithful, the new law is a viable alternative to a health and safety prosecution and will carry a great deal more stigma.
Speaking to Fleet News on the day the bill received Royal Assent, Mr Faithful said: “This will reinforce the obligation on a company to comply with health and safety legislation. We cannot say we were not warned of its arrival.
“This will become the prosecution of choice, with the prospect of the managing director standing in the witness box alongside the driver.”
Mr Faithful advised company bosses to ensure risk assessments are carried out and recorded in writing. Measures must be put in place to manage and minimise risk and an audit trail must show that a company implements health and safety rather than just paying lip service to it.
“Responsibility will have to be demonstrated from the managing director down,” said Mr Faithful. “If a company has merely adopted a quick fix by purchasing solutions such as driving licence checking, driver assessment or training without an initial risk assessment, cultural change and audit trail, I believe they will still be vulnerable.”
The Corporate Manslaughter Act is the latest in a series of initiatives that fleet managers have to contend with, including the addition of a fleet section to the Association of Chief Police Officers’ Road Death Investigation Manual, and guidelines for the management of work-related road safety from the Health and Safety Executive.
Workers’ unions have welcomed the new corporate killing law.
Brendan Barber, general secretary of the TUC, said: “The catalogue of avoidable workplace deaths in recent years has highlighted the need for a change of attitude in boardrooms. We need to ensure this law is accompanied by a legal health and safety duty on directors and a requirement on companies to report annually on their workplace safety culture.”
Figures revealed last week showed workplace deaths had reached a five-year high and, according to BBC Radio 4’s Face the Facts programme, more than 300 serious incidents went unexamined.
But the Health and Safety Executive told Fleet News that these figures do not include work-related driving, which it feels is better left to the police to investigate.
The Corporate Manslaughter Act – main provisions
The offence will:
Require the organisation to owe a duty of care to the victim, which is obvious in a driving scenario.
Focus on senior management failures, either individually or collectively.
Require evidence that the management failure amounts to a gross breach of duty to take reasonable care.
Management failure criteria will consider:
The way in which a particular activity is being managed (in reality, mismanaged).
Responsibility falling on senior directors and managers.
Actions of individuals who have a “significant role”, where management responsibilities bear on the organisation as a whole or substantial part of it. This includes health and safety and fleet managers.
Actions of a middle manager undertaking a senior role will be relevant.
A jury hearing a corporate manslaughter case will still have to find that there has been a gross breach of duty by the company (or gross negligence manslaughter by a senior manager). The company would have failed to embed a health and safety culture within its management process.
The jury will hear evidence of how the company’s health and safety culture measures up against the Health and Safety at Work Act 1974 and its subsequent management regulations, codes of practice and guidelines.
The act refers to the liability of managers as well as company directors, but neither will be at risk of imprisonment – it is the company that will be subjected to the prosecution.
There is still potential under the old common law of manslaughter for individuals to be prosecuted, but since the unsuccessful prosecution of managers connected to the Hatfield rail crash, it is very unlikely that this will happen.
- The effects of the Corporate Manslaughter Act on the risk management of fleets will be a main theme at the Fleet News Hit For Six conferences at Oxford and Ilkley in September.