Employment Matters October 2006

Corporate Manslaughter – Paying the Price

This summer saw the publication of the Corporate Manslaughter Bill, which, if enacted, would have significant implications for companies and their senior management teams, with regard to possible prosecutions for corporate manslaughter. The new Bill serves as a timely reminder to companies that they need to ensure that their Health and Safety Policies are effectively implemented, and enforced in order to protect their employees and to minimise the risk of a fatal accident occurring in the work place.

What is Corporate Manslaughter?

Corporate manslaughter is a corporate version of the common law offence of manslaughter. In order to secure a conviction against a company, it must be proven:

• that the company owed a duty of care to the deceased;
• that the duty was breached;
• that the death of the deceased was caused by that breach; and
• that the breach amounted to gross negligence on the part of the company.

There will be little room for debate regarding whether an employer owes an employee a duty of care in respect of health and safety. Furthermore, it generally follows that the existence of a breach of that duty will mean that the rest of the factors can also be established. However, the reason why so few of the recent high profile corporate manslaughter charges have been successful is that, unlike in a prosecution of an individual for manslaughter, the company can only be liable for corporate manslaughter where the presence of a “directing mind” can be established.

What does the ‘directing mind’ principle mean?

The “directing mind” of a company is defined as those people who represent the controlling influence and will of the company and manage what it does. In the majority of companies it is normally the Board of Directors, the Managing Director or perhaps other superior officers of a company who carry out the functions of management and speak and act for the company. The problem is that the acts of many people cannot be combined to give rise to corporate responsibility through one “corporate mind”: there must be one single individual, or a small number of individuals, who can be identified to fulfil all of the criteria set out above.

An example of such a failure to establish a ‘directing mind’ can be seen in a recent case involving Barrow Borough Council. The Council was prosecuted after an outbreak of Legionnaires disease was caused by the escape of legionella bacteria from Council premises. The judge advised that the Council be acquitted on the basis that it could not be proven that any one person comprised the “directing mind” of the Council and, so, the ingredients of corporate manslaughter could not be established.