In part 1 we looked at The Corporate Manslaughter and Corporate Homicide Act and how applies to organisations which cause a person’s death or exhibit a gross breach of a relevant duty of care owed to the deceased.
Here we will explore the role of senior management and individual liability. As always, this is for information only and does not constitute legal advice. We are always happy to give personal and detailed advice, just give us a call on 01224 900025.
Senior Management
This is the final constituent part of the offence. If the way a company’s activities are managed or organised by its senior management is a substantial element in the breach, then the organisation is guilty of an offence under this section.
A substantial part of the failing must have occurred at a senior management level. This means the people who play significant roles in:
· the making of decisions about how the whole or a substantial part of the company’s activities are to be managed/organised
· the actual managing or organising of the whole or a substantial part of those activities.
The Guidance Notes suggest that the definition will probably include people carrying out ‘headquarters’ functions and those in senior operational management roles, but it will depend on the nature and scale of the organisation’s activities. It could include regional managers in national organisations and the managers of different operational divisions.
How far down management tree?
We will just have to wait and see but it is inevitable that this will not stop at board level. Investigators and prosecutors will be looking to push the term ‘senior management’ lower down the management tree.
The prosecution will need to show that managers had ‘sufficient’ control of the organisation. This will include decision-making and actual management, along with what could and should have been known. Sticking your head in the sand will not wash if it can be shown that you ought to have known, even if there was a breach of policy or procedure (the breach being by someone other than a manager). Job descriptions and responsibilities will be taken into account and could be used to prove ‘senior management’.
The test of senior management is wider than the former ‘controlling mind’, which effectively restricted the offence to actions of directors. A regional manager would probably count but this may itself depend on the number of regions, the number of higher tiers of management, the diversity of the organisation’s activities and his or her own job description.
There is no individual liability
The offence is against the corporate body, not the individuals in it. This means no-one will be facing a prison sentence under the Corporate Manslaughter Act.
This is not to say that individuals will be without the risk of prosecution. The offences for Culpable Homicide and Common Law Manslaughter are still in existence for individuals and these carry the potential for imprisonment.
Further, offences under HSWA 1974, such as s.37, can still apply and are often brought in conjunction with Corporate Manslaughter and other HSWA offences against specific individuals.
Please note: there is still considerable lobbying by campaigners for individuals to face such offences so we will keep you up to date.
In part 3 we will outline penalties and sentencing. To catch up on part 1 please click here.
