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Corporate Manslaughter

By: Abigail Taylor - Updated: 2 Mar 2017 | comments*Discuss
 
Corporate Manslaughter Company Law Duty

Corporate manslaughter is a crime that can be committed by a company in relation to a work-related death. This is called corporate homicide in Scotland. The offence was created to rectify the problem identified by a 17th century English judge that "Companies have a soul to damn, but no body to kick".

The Corporate Manslaughter and Corporate Homicide Act came into force on 06/04/08. It is not retrospective and has only applied to deaths after that date. The offence enables a company to be punished for negligent conduct that leads to a person's death (for example poorly constructed scaffolding that leads to a contractor falling from a building).

Corporate manslaughter does not affect any criminal investigation of individuals by the Crown Prosecution Service, or compensation awarded to the deceased's estate in civil litigation.

The legal test

Every offence has a legal test. The prosecution will have to fulfil this test to prove that a company is liable for corporate manslaughter. Simply put, the legal test for corporate manslaughter is:
  • The accused had a duty of care to the deceased
  • The accused breached that duty of care
  • The breach of duty caused the death and was so severe a breach of duty to be a crime (gross negligence)
  • The accused is a 'controlling mind or will' of the company

A person who has a 'controlling mind or will' over a company is someone who is in sufficient control of the company's affairs that the company can be said to act through them.

What constitutes gross negligence?

Negligence turns into gross negligence if the breach of duty falls considerably below what would reasonably be expected of the organisation in the circumstances. Whether the negligence is gross negligence depends upon considerations such as:
  • How serious the failure was
  • How real the risk of death was
  • The attitudes, policies and accepted practices of the organisation which led to the failure
  • Any health and safety guidance relating to the breach

Changes in the law

It is far easier to identify the controlling mind of a smaller company, and so get a conviction.

Case Law: Lyme Bay tragedy

This was the only successful prosecution for corporate manslaughter before the Corporate Manslaughter and Corporate Homicide Act 2007. Peter Kite, the sole owner of OLL Ltd, was jailed for three years and fined £60,000 following a canoeing accident in which four teenagers died at Lyme Bay. Mr Kite was found guilty because he was directly in charge of the activity centre where the victims were staying. Mr Kite's custodial sentence was later reduced to two years on appeal.

In larger companies, it is often difficult to prove that the actions of one director or manager control the whole company. In the case of large companies, the prosecution often try to secure a conviction for breach of the Health and Safety at Work Act 1974 which is easier to prove.

Case law: Herald of Free Enterprise

This is one of the most famous corporate manslaughter cases before the Corporate Manslaughter and Corporate Homicide Act 2007 came into force. The Herald of Free Enterprise, a Townsend Thoresen car ferry owned by European Ferries, capsized in 1987 off the Belgian coast. 193 people died after the bow doors of the ferry failed to close and the car deck flooded. The jury returned verdicts of unlawful killing in 187 cases. However the corporate manslaughter case failed as the acts of negligence could not be attributed to someone with a 'controlling mind' over the company.

Case law: Transco

In 2003 the appeal court in Edinburgh rejected a charge of culpable homicide (the Scottish equivalent of corporate manslaughter pre-2007) against the gas pipeline firm Transco after four people died in Larkhall in 1999. However separate charges were brought under the Health and Safety at Work Act 1974 and the company were fined £15,000,000.

The difficulty is, under this law, it was not possible to add up the negligence of several individuals to show that a company has been guilty of gross negligence; a specific individual who is at fault has to be identified as 'the controlling mind' for corporate manslaughter to be proven.

The Corporate Manslaughter and Corporate Homicide Act 2007 aimed to redress the balance in favour of the victims to ensure that companies whose negligence leads to the death of its employees or the public are brought to justice. The Act now means that the breach of duty does not have to be by someone with a 'controlling mind or will'.

Many people welcomed the new legislation as it forces health and safety issues to be the concern of every member of staff, from the directors downwards. It has also meant that convictions for corporate manslaughter have increased over 40% since the Act was passed. However most convictions are still against smaller companies, so it remains to be seen whether the 2007 Act will address the historical problem of prosecuting larger companies for the death of their employees.

Case law: Lion Steel Ltd

The company was charged in relation to the death of 45 year old employee Steven Berry who fell through fragile roof panelling sustaining fatal injuries. The company pleaded guilty to the offence on 4 July 2012 and was fined £480,000.

Punishment for Corporate Manslaughter

The Sentencing Guidelines Council gave guidance (in February 2010) to judges on the sentence for corporate manslaughter. The purpose of these guidelines was to distinguish between fines imposed for corporate manslaughter, and fines imposed for health and safety offences resulting in death.

One of the considerations is that the fine must be enough to punish the business but must not put the company out of business, as this would punish other employees. In particular this will be important if the company delivers services to the public.

The guidelines suggest that in cases of corporate manslaughter, the fine should rarely be less than £500,000 and may be several million pounds. This compares to a starting point of £100,000 for health and safety breaches. The fine for corporate manslaughter is unlimited, but is often 5% of the company's turnover for a first offence, rising to 10% of turnover for subsequent offences.

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Hi I was on a 3month probation now after the 4 week they told me me that im to slow after I told them from the start that I went under operation on my right shoulder and its not 100percent yet.but they still let me sign the contract.just because I lodged a complaint this morning .we are 4 teams and it seems im the only one working while the others just stand around .I would just like to know if they have the right to do this.Thank you
Dolph - 2-Mar-17 @ 4:41 PM
Hi, i started a job 9 days ago and the contract stated that full training will be given. I have raised a couple of things i have been stuck with having had no training and was told there is no time to train me they are very busy. After getting nowhere with them and not getting the help i needed i got sent to the managers office first thing this morning advising my dismissal because of gaps in my work. I mentioned that i have asked for help and they reiterated that they have no time to train me.The contract says that there are regular meetings to deal with any concerns, this was my first one. It also said that there are three stages before dismissal including a written warning which i did not get. The contract also said that in the probationary period i should have 1 weeks written notice, i had a verbal one and was immediately out although i am being paid for a week. They have breached their own contract. Can i claim for unfair dismissal being new to the company?
Claire - 27-Jan-17 @ 2:06 AM
Hi there, I have a 3 month probation contract and suddenly they fired me after 4 days of working within the company , with just the reasen that i am not fit for the job role. What i would like to know if they have to pay me the full 3 months or just 1 month? I didn't get any resignation letter from my manager. Any advice would be helpful.
Bart - 14-Oct-16 @ 7:56 PM
I have worked in a medical company as a Customer Service Consultant in 2008 and was hired through a Recruitment Agency.My contract was only for 6 months but was asked to leave during my probationary periodbecause according to my supervisor my performance was not satisfactory although I tried very hard to fulfil my duties accordingly. Now recently I was back in the same company through another Recruitment agency.My supervisor was no longer there and was moved to another department.There was a new Supervisor who is more helpful and considerate.My contract is only for a month to cover employees on holidays.Lately, 2 employees have resigned.Can I apply for a permanent position in the company?Is my previous record hold a bearing on my present situation? Please advise.
Kelly - 31-Oct-15 @ 9:50 AM
kimbo - Your Question:
I have been employed by my company since June 2015 on a six month probation. I was told today that they are extending my probation until March 2016. My probation only expires on the 1st December. Can they extend my probation now or should they not have waited until 1st December then decide if they want to extend my probation. I don't think I am being treated fair.

Our Response:
It depends on the terms of your contract/offer letter etc. Read what it says about extending your probationary period. If it is not mentioned, it cannot be extended. See our guide: Employment Probation Periods: What you Need to Know
SafeWorkers - 6-Oct-15 @ 12:56 PM
I have been employed by my company since June 2015 on a six month probation. I was told today that they are extending my probation until March 2016. My probation only expires on the 1st December. Can they extend my probation now or should they not have waited until 1st December then decide if they want to extend my probation. I don't think I am being treated fair.
kimbo - 5-Oct-15 @ 3:57 PM
My son is 9 weeks into a probation period and was asked to go home after being told his work is not satisfactory he has had a verbal warning but no written warning but was told to giveletter of notice therefore they will not give a bad reference I feel he should have been spoken too and given a written warning as a final warning is this correct or is the company acting correctly
tak - 8-Aug-15 @ 5:04 PM
I really would like to know exactly where I stand why because here in jamaica i started working at this company there i was put on probation period for 3 months i was successful in completing the job and i was full employedbut i would like to know what is the amount of sick leave i get , vacation leave as welland if anything is known as personal leave without pay
pam - 29-May-15 @ 6:20 PM
Hello, Im really worried wether i will receive maternity pay from my workplace. This baby was not planned and at the time i had just received my contract for my role at my Primary School as a Teaching Assistant. Im on a probation peroid of 6 months, it started on the 13 of October. Im 13 weeks pregnant. Please can you tell me wether i will be entitled to help and will my workplace try to get rid of me as Im on my probation period. Thank you so much for your help hopefully i can put my mind to rest over this issue. Kelly
kelly - 20-Dec-14 @ 10:46 AM
Hi,I started a new job on 31/7/14 I was enjoying the new job. On 10/10/14 I found out I was pregnant and told my employer ASAP because of the heavy lifting and previous risks I have had in pregnancy. At the time my health and the baby's health was first as I could not carry on lifting e,c,t. I told my manager in confidence even putting my probation period at risk as it was best for me to be safe and it would of gave me time to try and find employment for myself if they couldn't keep me. My manager seemed very helpful at the time and told me how well I'd been doing and it wasn't a problem it was a blessing. She then suggested that she extended my probation for a further 4 weeks to help me pass as I only needs a bit of work to complete baring in mind I only had one training day, I agreed so she threw in 3 training days for me which still didn't cover everything. She stated that she didn't want me to go on maternity and come back not knowing my role and believed it would help me to extend. Within the 4 weeks I started experiencing different treatment which I raised but was ignored. I came into work and was told when I got there it was my sigh off day, no warning was given at all to find out that I was being dismissed because of a customer complaint which she couldn't Believe id done. I stressed I didn't do anything but she didn't listen. After dismissal I went to see the customer and she was horrified to hear what had happened as she said she didn't make an official complaint against me and didn't no my situation. I believe I was discriminated for being pregnant as the whole thing seems wrong as I never received a complaint before my extension. I need advice on my rights and where to go from here. I was told by my manager that I cannot appeal against the decision made.
Charlie - 4-Dec-14 @ 11:04 AM
Hi there I started my job in June and I'm under my 6 months probationary. I have worked really hard and have received good comments.However, the role was very stressful as the company was going through a sale e.g. It took 3 months for me to be assigned a desk and a phone (as a manager this was very difficult). My operation manager went on sick and then left as did my line manager.This presented further difficulty and additional work to the degree where I was working additional hours through the pressure and demands of delivering results. I've now got a trapped/pinched nerve which has thrown my back in to spasm making it very painful for me to walk, sit or drive.As a result I've been on sick leave for almost 2 months. My employers are pressurising me and keep making comments regarding my probationary review. Like my line manager and manager above they both left under mutual agreement.My worry is that I will 1. Loose SSP if I leave of my own accord and 2. It will impact on future role applications. It's difficult for me to know what to do for the best. I assume they can dismiss me on the basis that I can't commit to the role due to sickness. Any advice would be helpful.
Carolinej0j0 - 20-Nov-14 @ 7:52 PM
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