Focus on Corporate Manslaughter
Food service businesses operate within a relatively high risk industry, and prosecutions for Corporate Manslaughter always grab the headlines, but what are the true risks for caterers? Philip Youdan, partner at Cripps Pemberton Greenish, explains the reality.
The Corporate Manslaughter and Corporate Homicide Act (“the Act”) came into force on 6 April 2008, over 11 years ago.
Its aim was to address a perceived defect in the law that meant that organisations could only be convicted of manslaughter if a “directing mind” at the top of the company (such as a director) was also personally liable.
The reality of decision making in large organisations did not reflect this and it was considered that the law failed to provide proper accountability and justice for victims.
The Act created a new offence, which was intended to complement, rather than replace, other forms of accountability, such as prosecutions under health and safety legislation. The addition of the new laws, rather than replacement of the old, has been one reason prosecutions under this Act are still limited in number.
Under the Act an offence will occur if the way an organisation manages its activities causes a person’s death and amounts to a gross breach of a relevant duty of care owned to them by that organisation.
There are significant consequences for being found to be in breach of the Act. Penalties include unlimited fines (the Sentencing Guidelines Council published guidance in 2010 suggesting that for corporate manslaughter the appropriate fine will seldom be less than £500,000 and may be measured in millions of pounds), remedial orders (requiring a company or organisation to take steps to remedy any management failure that led to a death) and publicity orders (an order requiring the company or organisation to publicise that it has been convicted of the offence). These will each have a significant impact on the business.
Sentencing under the Act will be impacted by certain factors, for example it may be increased if the organisation failed to act on warnings or advice from health and safety representatives, but decreased if the organisation accepts it was at fault, cooperates with the investigation, made genuine attempts to address the issues which led to the negligence, and has a previously good health and safety record. So food businesses can take some actions in advance to reduce the risk of breaching the Act, and after to mitigate the consequences once a breach has occurred.
Businesses covered by the Act include companies and partnerships. Whilst it does not cover directors or other individuals who have a senior role in the organisation, they can still be guilty of offences under other legislation, such as gross negligence manslaughter in the most serious of cases.
There have been a few successful prosecutions under the Act, but the total number is modest compared to the overall number of health and safety prosecutions. Whilst food businesses should be aware of the Act, in practice organisations that take their health and safety responsibilities seriously are not likely to be found in breach.
The key is to ensure that your business fully complies with health and safety and other applicable standards, assesses, understands and manages the inevitable risks of trading. For more information, contact Philip Youdan on firstname.lastname@example.org
This article first appeared in B&I Catering in June 2019.