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Introduction
Health and safety legislations are a key part of every jurisdiction. This is not the case of UK alone, but for every other nation. These legislations are based on the system which had been recommended in 1972 by Lord Robens to the British government. It was stated in this report that the key responsibility of doing something regarding the levels of occupational accidents and the disease stems from those who form such risks and the ones who work with them. This system not only promoted a focused and a flexible framework, but it was also controlled predominantly by industries in which such risks were created (Kloss, 2013). This was established under the law in form of the Health and Safety at work Act, 1974 and had the goal of stopping the ones who were responsible in this context, from contravening the law. The purpose of any and all health and safety legislation of any jurisdiction is to ensure that the people at workplace are properly protected and provided with the safe environment to work at. Where this is not done, the ones at the top of the organizations are made liable. This can not only result in civil liabilities but also criminal liabilities under the legislation of UK (Chicken, 2013).
This discussion is focused on highlighting the possible criminal liabilities which the company directors can face in context of manslaughter under the common law and also under the Health and Safety at Work of UK in terms of gross negligence. In doing so, help would be taken of the case laws in UK and in the other jurisdiction of Australia. Before concluding the discussion, the recommended leadership strategies for compliance in context of health and safety in the companies for promoting the proper discharge of managerial responsibilities would be elucidated.
Criminal liability
The organizations are facing investigations in an increasing manner for corporate manslaughter and even in the coming years there are expected to be a range of convictions, the number of which would only be raised in a dramatic manner.
Corporate Manslaughter
Through the Corporate Manslaughter and Corporate Homicide Act, 2007 the convictions against the organizations was made easier for securing and has also changed the liability for the deaths at workplace. The corporate manslaughter, as an offence, is undertaken by the organization or the company itself (Davies, 2008). The companies can be convicted for manslaughter of any person where there is mismanagement amounting to gross breach in the duty of care. The act provides that the organization would be guilty where the activities managed by them result in death of a person, or amounts to gross contravention of obligation of care which the company owed towards the deceased person (Matthews, 2008).
The organization is held to be guilty where the activities of it are organized or managed by the senior management and there is a substantial element in the contravention. Here, the key focus is on the general corporate processes and procedures instead of being on the decision making and action of an individual. The sentencing guidelines give the judges the right of imposing fines based on the size of the organization (Biddlecombe, 2018). The firms which are convicted of convicted of corporate manslaughter having a turnover of over £50 million face a fine of up to £20 million and £10 million for the undertaken health and safety offences. Following the introduction of this act, there had been certain convictions. Though, it appears that there has been a change in policy. This is because the companies are now facing increasing investigations for manslaughter and this number of corporate manslaughter is set to rise in the coming years (Burrows, 2015).
Gross negligence manslaughter
The Corporate Manslaughter and Corporate Homicide Act, is silent on the individuals under the companies being liable. The individual directors who are at fault for the work related deaths can be prosecuted under the common law offence which is that of the gross negligence manslaughter. Prosecutors can still indeed continue with the individual directors being charged especially when the case is such that the company is being prosecuted for corporate manslaughter. In such a case where the director has been accused of being the cause of a death at workplace, they can also be made liable for being grossly negligent and be prosecuted accordingly (Ullrich, 2008).
In order to hold a director as grossly negligent, there is a need to show that a duty of care had been owed to the director, this duty needs to have been contravened by the director, and the breach needs to result in death of an individual. Again, it is not enough to show that the director had been negligent. There is a need to establish that the failure in upholding duty of care had been gross (Almond, 2013). To put it in other words, it needs to be so extreme that the inactions or actions of director can be deemed as criminal, in terms of conduct being such which falls way below the reasonable level of expectation. This is the element which is the most difficult one to establish. Even when it comes to the high profiled corporate failure, no individual directors were convicted in reality due to these very reasons, for instance the Hatfield train crash (Daniels, 2016).
Case Laws
In R v Lion Steel Equipment Ltd (2012) T 2011 7411 Unreported, Manchester Crown Court, 20 July 2012, an employee had died after he fell through the roof of factory. As a result of the company pleading guilty to corporate manslaughter, it had been fined with £480,000. In addition to this, three of the directors of thee company, which included the General Manager and the Finance Director, had been prosecuted individually for the gross negligence manslaughter. For this, the maximum sentence was life imprisonment even though in majority of the gross negligence manslaughter conviction cases lead to a jail term of three to four years. It had been claimed by the prosecution that the directors owed personally to each and every employee, a duty of keeping them safe. Arguments had been made where the duty is present simply by the person holding the post of director and the involvement or relationship with the employees did not matter at all (Judiciary of England and Wales, 2012).
This argument had though been rejected by the judges. They stated that the director position did not create in itself the duty of care towards each and every employee. Instead, the measures of responsibility and control of the senior managers and directors’ exercise over the activities was the focal point. The duty of the director can only be established by firstly asking on the responsibility and control which the director had. Where the director lacked any kind of direct responsibility or control, in such case, there can be no duty, and as a result of this, no manslaughter liability can be established against the director (Ellis Whittam, 2017).
The judges also emphasized on the difficulty in establishing the gross negligence manslaughter. There was no conviction for manslaughter in the case of R v Lion Steel Equipment Ltd against the directors. There had been an informal bargain struck where the company had pleaded guilty to corporate manslaughter in return for the case being dropped against the individual directors (Monaghan, 2018). There was a need for each and every senior manager and director to clearly define their responsibilities and roles. The degree of responsibility and control of the director can be limited owing to the description of job. This allows the directors in protecting themselves from the claims related to the owed duty (Ellis Whittam, 2017).
When it comes to small companies, establishing responsibility and control becomes way easier. In R v Cotswold Geotechnical Holdings Ltd [2011] EWCA Crim 1337, which had been the first ever corporate manslaughter prosecution, the company had been convicted, along with being fined for £385,000. The only director of the company had been terminally ill and had been not able to stand trial for manslaughter individually. However, when it came to the conviction of the company, it had been viewed by the court that the director had the control and responsibility for the majority of activities of the firm (Griffiths & Armour, 2015).
In 2013, a director had been convicted of gross negligence manslaughter in the matter of Crown Prosecution Service v North Eastern Maritime Offshore Cluster Ltd and others [2013] Newcastle Crown Court. This case shows that even though there had been difficulty in showing the gross part, it does not mean that it was impossible, particularly when the case involves glaring levels of lawbreaking and the director had been responsible directly. Turnbull had been the only director where the employee had died after they fell from the cherry picker. The lawbreaking of Turnbull was heard by the court which included the same not being competent in a sufficient manner, along with having a failure in ensuring safe workplace and planning adequately. As a result of this, the individual had been jailed for a period of three years. A factor which was seen as aggravating in the failure of Turnbull was improving his working practices one a similar based non fatal incident had taken place (Croneri, 2018).
Health & Safety at Work etc Act 1974
For the workplace deaths, the directors can be prosecuted under the Health and Safety at Work etc Act, 1974 (HSWA). This act provides that the senior managers or the individual directors can be made liable in such cases where the company fails in meeting their obligations of health and safety. Further, such failure is due to the connivance or consent of the director or where this is due to the neglected permission in safety failure. Here, connivance or consent means that the director had the knowledge of the situations which resulted in the death of the individual and that they had allowed or consented for the things to be continued. Even through mere neglect, the offence can be committed (Taylor Wessing LLP, 2018).
There is a dramatic element in the manslaughter charges; yet if anything, the directors need to be more aware regarding the offences under this act for three key reasons. The first reason is related to the liability covered under this legislation which is way easier in establishing in comparison to the gross negligence manslaughter. The second one is that even though the lawbreaking of a company has to be shown, there is no need to showing that it had been gross. Lastly, based on the Health and Safety (Offences) Act, 2008, two years period can be awarded as custodial sentence. With the onset of 2008 act, more teeth have been given to HSWA and this has also closed the gap in context of the penalties for gross negligence manslaughter (Hughes and Ferrett, 2015).
Included in the 2016 Health and Safety Offences Definitive Guidelines, is the guideline for individuals being sentenced, in cases of the duty of health and safety being contravened, particularly when the result of this is a person dying. A number steps are followed by the judges in assessing the category of harm and the culpability of degree of fault which can be low, negligent, reckless or deliberate. There are category ranges and starting points in the sentences. For instance, where the harm had been such which was highly likely to take place and there had been a complete and deliberate disregard by the director, the category range would be of one to two year custody and the starting point would be custody of eighteen months (Hodges, 2015).
Australia
As stated in the initial parts of this discussion, other jurisdictions have similar protection in context of health and safety and can attract criminal liabilities. One of examples of such other jurisdiction is Australia. In context of the criminal standards regarding the essence of manslaughter in terms of breaching standard of care attracting criminal liability, the case of Nydam v R [1977] VR 430 is used as guidance. Again, here also, it is acknowledged that there is difficulty in applying this law when the death is a result of the failure of acting on part of the management. For instance, where the management negligently fails in assessing the risks at workplace and in ensuring safe working procedures, the proof of charge needs to establish that a duty of care had been owed by the individual manager towards the deceased and that this breach of duty was a departure from proper standard of care requiring criminal punishment as was seen in R v Bateman, [1925] All ER 79 (Wheelwright, 2005).
Leadership Strategies
Managers are the individuals in any company who design and improve upon the working conditions, influencing the health of their subordinates. They are the ones who control, coordinate, lead and plan the work in any organization, along with the activities which take place in it. In context of the employee health, they strongly influence the factors like general working demands, and control and social support. They influence the working conditions and decide on changes in the working environment and in the workplace. These aspects combine in determining the safety and health levels at workplace. There are certain leadership theories which help in promoting health and safety compliance in companies for proper discharge of managerial responsibilities.
The first one is the trait theories, which has its basis on the approach given by Lewin. He put forth three leadership styles, in context of democratic, autocratic and laissez-faire. The democratic style is participative leadership style which is deemed as the most effective one. In this approach, the employees are allowed to participate in the decision making. Yet the right of making the final decision is with the leaders. The work is delegated in this style for controlling the employees. This allows higher motivation in employees and result in higher quality and more creativity. The next style is autocratic, which is a strong hierarchical style. The employees do not form a part of decision making and the obedience is controlled by managers, along with making decisions. The employees are less creative yet this style is more productive. The last style is laissez-faire management has no or little guidance by manager with no control resulting in this style being less productive (Mills et al, 2006).
In the context of these three theories, the applicability of health and safety norms would be changed based on the leadership style. When it comes to the democratic style, proper care would be taken by the leadership as the employees play a key role in their safety and health at workplace. Conversely, the liabilities covered in the previous segment would be applicable in autocratic style as the managers, in such cases, have the full liability of undertaking such health and safety norms, and where they become careless, they are held liable. Lastly, in context of the laissez-faire management, no liability would be raised for the management as the workers would have full control over their functioning (Boje, Burnes and Hassard, 2011).
There are a number of varied regions in which the significance of management leadership become apparent in context of occupational health and safety aspects. The leaders have to make certain that there is proper placement of good and functional management system, in all of the possible aspects of occupational health and safety aspects in structured approach. Only when the entire company lives and accept the management systems, can they be deemed as most effective. Thus, the behaviour of the leader in context of transposing and developing the strategies and visions of occupational health and safety is crucial to the success of such management system (Reese, 2015).
The influence of leadership in accident prevention and risk management is also very crucial. In the traditional view of safety and health at workplace is mainly promoted here and the focus is placed on the risks by minimizing the risks and enhancing the prevention for the workplace accidents. It is required on part of the leaderships to conform to the general rules regarding protection and prevention of workers against diseases. They are also required to introduce the measures which encourage the improvements in health and safety of the workers at the place of work. Thus, the leaderships are required to undertake the most basic occupational safety and health tasks where they follow the standards which have been established and create such rules which result in these standards being followed in the workplaces. There is a need for the managers and the chief executive officers to make certain that there are ample resources provided in terms of money and time for complying with such rules, and for undertaking the requisite changes (Tweedy, 2014).
Conclusion
To bring this discussion to its conclusion, it cannot be denied that work place health and safety is a crucial part of any jurisdiction. There is a crucial role played by the individual directors when it comes to the individuals at the workplace and their deaths. And this role is actively considered by the prosecutors and regulators in the aforementioned context of manslaughter and gross negligence. The common law and the health and safety legislation can be used to create the individual criminal liability. The legislations on health and safety are taken to be greater deterrent when it comes to the individual directors being targeted instead of the company itself. Naturally, the individuals want to safeguard their own resources and their liberty. Therefore, the pursing directors would continue for sure. So, the directors need to take the health and safety obligations in a very serious manner and they need to be aware of the law and guidance in order to comply with them. This is again crucial as such guidance and laws define the responsibilities in a proper manner and also the manner in which the directors are supposed to act in such cases. The law was explained, particularly through the case laws. Also, the requisite leadership theories and strategies were also highlighted to show the manner in which the proper discharge of managerial responsibilities can be promoted.
References
Almond, P. (2013) Corporate manslaughter and regulatory reform. New York: Palgrave Macmillan.
Biddlecombe, R. (2018) UK Health and Safety Offences – No Two Cases Are The Same. [online] Available from: https://www.lexology.com/library/detail.aspx?g=2da7c641-b070-48b2-ab02-08a9624e0381 [Accessed 21/03/18]
Boje, D. M., Burnes, B., & Hassard, J. (Eds.). (2011). The Routledge companion to organizational change. Oxon: Routledge.
Burrows, C. (2015) New sentencing guidelines for health and safety, corporate manslaughter, food safety & hygiene offences. [online] Available from: https://www.dlapiper.com/en/uk/insights/publications/2015/11/new-sentencing-guidelines-for-health-and-safety/ [Accessed 21/03/18]
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Daniels, S. (2016) Corporate Manslaughter in the Maritime and Aviation Industries. London: Taylor & Francis.
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Hodges, C. (2015) Law and Corporate Behaviour: Integrating Theories of Regulation, Enforcement, Compliance and Ethics. London: Bloomsbury Publishing.
Hughes, P., and Ferrett, E. (2015) Introduction to Health and Safety at Work: For the NEBOSH National General Certificate in Occupational Health and Safety. Oxon: Routledge.
Judiciary of England and Wales. (2018) Regina v Lion Steel Equipment Limited. [online] Available from: https://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Judgments/hhj-gilbart-qc-sentence-remarksr-v-lion-steel.pdf [Accessed 21/03/18]
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Ullrich, L. (2008) The Corporate Manslaughter and Corporate Homicide Act 2007: In Comparison with German Law. Saarbrücken: AV Akademikerverlag GmbH & Company KG.
Wheelwright, K. (2005) Some Care, Little Responsibility-Promoting Directors’ and Managers’ Legal Accountability for Occupational Health and Safety in the Workplace. Deakin L. Rev., 10, 470.
