Although the final wording of the Act has yet to be made public, two elements at least are clear. First, the old and rather vague “duty of care” will become a “compulsion to care”; second, “omission” will become just as much of a sin as “commission”.

Historically, prosecutors have found it very difficult to make corporate manslaughter charges stick, because it has proven nigh-impossible to pin responsibility on one single individual.

The classic case is that of the 1987 Herald of Free Enterprise disaster, in which 187 people died.

Although coroner Richard Sturt‘s inquest jury returned verdicts of unlawful killing, although many of the victims‘ relatives urged that ferry company Townsend Thoresen should be prosecuted, and although Mr Justice Sheen‘s subsequent enquiry found that company directors had been suffering from the “disease of sloppiness”, the law ultimately proved unfit for purpose.

Two decades later, all that is about to change. Companies will be able to be held legally liable for their employees‘ actions while they are at work. And those employees do not have to be in the office to be “at work”.

The most frequently-used example of the implications of the new Corporate Manslaughter law is that of a jet-setting executive returning home after a longhaul business trip.

He – or she – arrives at the airport and then gets into his or her car to drive home, and is then involved in a fatal road traffic accident. Because it is a business trip, that individual will be deemed to be “at work”.

Prosecutors could argue, at least in theory, that the employing company should have advised against driving after a long, tiring flight (particularly because the company could reasonably assume that the employee might have had a drink or two into the bargain). If no such advice was issued, the company could be held to have contributed, indirectly, to the fatality.

In the past, unless they could show that the employee was instructed to take actions which contributed to the fatality – to drive to yet another meeting immediately after a tiring longhaul flight, for example – prosecutors have found it very difficult to make corporate manslaughter charges stick.

Under the new legislation, employers will need to show not only that they have health and safety rules in place, but also that they communicate and update them effectively and regularly, and that they police those rules, carrying out regular checks to ensure they are being adhered to.

Equally, if the employee could demonstrate that company culture, let alone policy, made the drive necessary – for example to attend a post-trip meeting – the employer could again be held partly responsible.

Ironically – and fortuitously, from my own company‘s point of view – this often-quoted example is one of the easiest to address. Employers can simply insist that their staff do not take their cars to or from the airport in the first place, but use reputable, reliable third-party providers to make the transfer.

Of course there is a cost attached, but there is also a cost attached to car parking, and an infinitely-larger potential cost attached to a corporate manslaughter prosecution.
Because nothing quite like this has existed in law before now, there is no precedent to refer to. No-one knows how rigorously the law will be enforced, nor how the courts will respond to any charges brought under the legislation.

Ignorance, however, has never been a defence; employers need to adopt a “better safe than sorry” approach and start drafting – and communicating and enforcing – policies right now.

“Have a safe trip” needs to be an order, not a valediction.

Neville Wynn, CEO, Cityhoppa

For more information please visit www.cityhoppa.com [1]