In a recent case, two waste management companies were found guilty of failing to take reasonably practical precautions to ensure the safety at work of their employees (in breach of section 2(1) of the Health and Safety at Work Act 1974) and were fined £140,000 with costs. It seems clear that the Health and Safety Executive (HSE) are focusing their attention on the waste industry because of its high number of fatalities as compared to other industry sectors.
The bill is the Government's latest response on this topic. The government previously issued a consultation paper in May 2000 which was a response to the Law Commission's recommendations contained in their report Legislating the Criminal Code - Involuntary Manslaughter.
The draft bill is currently subject to a consultation process that will last until June 17 and the bill is also being published for pre-legislative scrutiny by Parliament. The recent General Election is likely to divert attention from legislative activities so the bill is some way off being enacted let alone coming into force.
There have been very few successful prosecutions for the current offence of gross negligence manslaughter because of the practical problems experienced in satisfying the identification principle. (This is the requirement that before a company can be convicted of manslaughter a responsible person must be identified who has sufficient authority to represent the directing mind of the company and that person must themselves be found to be grossly negligent).
The bill proposes a different burden of proof. Death must be caused by a gross breach of the relevant duty of care owed by the organisation to the deceased (section 1(1)). Essentially, the new offence shifts the focus from the need to identify negligent acts of a directing mind of the organisation to failures in the way an organisation's activities are managed or organised.
Enforcement bodies will, therefore, focus on how health and safety issues are managed and conducted within the organisation rather than needing to find an individual culpable of negligence. Obviously, the role and activities of senior managers will be relevant.
The bill (section 3(1)) defines a gross breach of a duty of care as being a failure which constitutes conduct falling far below what can reasonably be expected of the organisation in the circumstances. In response to concerns raised in the consultation on this issue in 2000, Section 3(2) describes the criteria for assessing what amounts to gross breach. The prosecution will have to prove that: the organisation failed to comply with any relevant health and safety legislation and if so how serious that failure was; senior managers knew or ought to have known about the failure to comply; senior managers were aware or ought to have been that the failure could lead to death or serious harm; senior managers sought to cause the organisation to profit from the failure.
Section 2 defines a senior manager as a person playing a significant role in either decision making as to how the organisation's activities (or a substantial part of them) are to be managed or controlled or the actual managing and organising of those activities (or a substantial part of them).
Relevant Duty of care