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The Act creates the new statutory offence in England, Wales and Northern Ireland of “corporate manslaughter”, and in Scotland of “corporate homicide”. A company will be guilty of the new offence if the way in which its activities are managed or organised by its senior management amount to a gross breach of the duty of care it owes to its employees, the public or other individual and those failings caused the person’s death. Companies and government bodies face prosecution if they are found to have caused a person’s death due to their corporate health and safety failings.

It includes three essential principals that underpin health and safety performance as:

Strong leadership

• Visible, active commitment from the board.

• Establishing effective communication systems and management structures.

• Integration of good health and safety management with business decisions.

Worker involvement

• Engaging the workforce in the promotion and achievement

of safe and healthy conditions.

• Effective ‘upward’ communication.

Assessment and review

• Identifying and managing health and safety risks;

• Accessing (and following) competent advice;

• Monitoring, reporting and reviewing performance.

Directors should make sure they have read, understood and implemented the guidance. The company’s safety management systems should be reviewed and external advice on health and safety and/or training should be sought.

Information regarding health and safety performance should be regularly reviewed at board level and an audit of performance carried out on an annual basis. A copy of the new guidance can be seen on the Institute of Director’s website at www.iod.com

How does the Act differ from the current law?

The current law links a company’s guilt to the gross negligence of an individual who is said to be the embodiment of the company. It has proved very difficult to prosecute large organ - is actions, and the only successful prosecutions have been against small companies where the director and company are essentially one and the same. The new Act seeks to address this difficulty by focusing on the way in which a company’s activities are managed or organised, and it is not reliant on one individual being found guilty of gross negligence or manslaughter. The courts will now be able to consider the wider corporate picture, looking collectively at the actions or, more appropriately, the failings, of the company’s senior management.

Who will be considered to be ‘senior management’?

A company will be guilty of the new offence if someone hasbeen killed as a result of the gross failure of a company’s senior managers – for example, where they fail to ensure safe working practices. Senior management is defined in the Act as those persons who play a significant role in the decision-making process about how the company’s activities are managed and organised.But there has been lots of debate about what constitutes ‘senior management’. The answer will be different in each case, depending on the size and structure of the business involved.

Directors’ health and safety duties

The Health and Safety Commission and the Institute of Directors have jointly produced a new guide for directors which explains fully the responsibilities directors now face. This replaces earlier advice provided in 2001. Directors need to know how they should behave to ensure their organisation’s health and safety performance is maximised. The guidance, therefore, sets out directors’ responsibilities for health and safety.

Many UK businesses are breaking the law by not complying with current health and safety legislation. As a result, directors are personally exposed to fines and penalties through criminal prosecution, which could even result in a custodial sentence. What offence has been created by the new Corporate Manslaughter and Corporate Homicide Act 2007 ??

Nick Morrall of Kingsdowne Consulting a BICM Business Partner, highlights the changes.