The increased use of gross negligence manslaughter in the context of health and safety prosecutions
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In these cases, a prosecutor may also have the option to charge the organisation with corporate manslaughter, or, in cases involving individuals, gross-negligence manslaughter.
In the broader context of health and safety prosecutions under the HSWA 1974, there are relatively few prosecutions for corporate manslaughter and gross-negligence manslaughter and even fewer convictions. However, two recent cases illustrate that the trend of prosecuting corporate manslaughter and gross-negligence manslaughter may be on the rise and can lead to significant fines and custodial sentences.
Deco-Pak Limited
On 09 June 2023, the owner of a garden supplies company, Deco-Pak Ltd, was sentenced to five years imprisonment for gross-negligence manslaughter. His company was further fined £700,000 (plus £90,000 in legal costs) for corporate manslaughter.
On 14 April 2017, Andrew Tibbott, 48, who had worked as a maintenance engineer for less than six weeks at the company, suffered fatal injuries after attempting to clean a sensor on an automated bagging production line.
According to the Crown Prosecution Service ("CPS") "Safety systems for the production line, known as the RM machine, were deliberately disabled or bypassed within weeks of its installation in early 2015. These features included safety fencing and a system which would automatically shut down the power if anyone stepped inside the production area." The CPS also found that unsafe practices continued at the company in the two years before Mr Tibbott’s death, and there was no active management or review of the company's health and safety systems or culture.
Health and Safety Executive ("HSE") inspector, Jacqueline Ferguson, stated that "There was a complete failure at management level to appreciate the need to proactively manage health and safety and a failure to react to incidents, injuries and reports of conditions that posed a serious risk to the health and safety of employees and others".
Greenfeeds Limited
This sentence was passed on the anniversary of another health and safety prosecution in which a director received 13 years imprisonment for gross-negligence manslaughter on 16 June 2022. In this case, a director and co-owner of a waste recycling company, Greenfeeds Ltd, was found guilty of two counts of gross-negligence manslaughter. His company was further fined £2 million for two counts of corporate manslaughter.
Police and the HSE investigation found the company did not have any health and safety procedure in place to manage the cleaning of the animal feed tankers. The two employees who were cleaning the tankers had likely lost consciousness as a result of the toxic fumes and lack of oxygen and fell into the animal feed and drowned.
Corporate manslaughter and gross-negligence manslaughter – under the spotlight
As discussed above, the number of convictions for gross negligence manslaughter in the health and safety context is relatively low in the UK. However, as the above prosecutions demonstrate, convictions for gross-negligence manslaughter carry serious consequences that all employers and particularly directors and senior managers should consider. The police will investigate manslaughter following fatal workplace accidents and the CPS are increasingly charging senior individuals with gross-negligence manslaughter, in addition to charging the company with corporate manslaughter.
Individuals can be convicted of gross-negligence manslaughter, which is a common law offence, if they are found to be guilty of a gross breach of duty to a victim causing death. The victim may be an employee, contractor, sub-contractor or a member of the public visiting or passing by the company's premises. An individual who is found guilty of this offence may face a prison sentence. The maximum sentence for gross-negligence manslaughter is life imprisonment but according to the Sentencing Guidelines, the sentencing will range depending on severity of the offence but it will typically range from 1 to 18 years in custody.
A company may also be convicted of corporate manslaughter if the way in which its activities are managed or organised (1) cause death and (2) amount to a gross breach of a relevant duty of care owed to the deceased. Corporate manslaughter is a statutory offence under the Corporate Manslaughter and Corporate Homicide Act 2007 ("CMCH 2007"). The offence applies to corporations, partnerships, government departments, trade unions or employer's association, and, the police force.
The CMCH 2007 does not create any new duties but rather defines a "relevant duty of care" as a type of duty of care owed by an organisation under the law of negligence, which includes a duty of care owed to employees and occupiers of a company's premises. An organisation will be convicted of the offence if the prosecution proves that the organisation is in "gross breach" of its relevant duty of care and a substantial element of the breach is a result of the way the organisation's senior managers organised or managed its activities.
A "gross breach" is defined as a conduct which falls far below the standard that is reasonably expected of an organisation in the circumstances.
A senior manager is defined as an individual who (1) plays a significant role in either making a decision about how the organisation's activities (whether in whole or in part) are managed/organised and (2) individuals who actually manage/organise the organisation's activities.
An organisation found guilty of this offence may be subject to significant fines as well as remedial and publicity orders. For instance, companies at the top end of culpability and turnover of over £50 million may receive fines of up to £20 million.
A proactive approach to health and safety
Neither gross-negligence manslaughter nor corporate manslaughter are new offences. However, these cases are a reminder of the serious consequences that companies and individuals can face when health and safety measures are inadequate. This should act as a catalyst for companies to review and update their health and safety policies and practices on an ongoing basis, which may include:
- Reviewing the culture around health and safety in the workplace, and in particular the 'tone from the top';
- Regularly reviewing and updating the company health and safety policy;
- Reviewing the company's suite of existing policies and procedures;
- Setting up a health and safety committee to review and consider any new and existing risks in the workplace;
- Ensuring that there is a health and safety 'competent person' within the organisation;
- Reviewing and updating the risk assessment protocol;
- Updating training materials and programmes; and/or,
- Conduct refresher training with employees, contractors and other third parties on a frequent basis.
For further advice about any issues arising from this post, please contact a member of the Fieldfisher LLP Health and Safety Team who will be happy to discuss your specific circumstances with you.
Elliott Kenton (Senior Associate), Kirstie Imber (Associate) & Shafagh Daneshfar (Solicitor)