Health and Safety Act and Corporate Manslaughter
In 2007 the UK bought in the Corporate Manslaughter and Corporate Homicide Act 2007 which that allows them to prosecute an organisation for killing employers. This was introduced because of difficulties in holding a company accountable for actions of senior managers, in particular their decisions which results in a gross breach of duty of care. The first sentencing occurred in Feb 2011 against an engineering company for allowing a engineer to work in a dangerous and unsupported trench. The fine of 385 000 pounds is significant but could have been more far biting.
‘Revised guidelines were issued which stated that “fines should rarely be below £500,000 and may be in the many millions”. Although below the range suggested by the Council, the fine imposed on CGH is far larger than the average fine for a work related death (usually around £100,000). This may be a sign that more substantial fines can be expected in the future.’
In New Zealand the position is that a company can be held accountable under the Crimes Act 1961in theory, but because of the definition of ‘Homicide’, a company is not a human being so cannot be held accountable under the Act! What about the individuals within a company?
Any Health and Safety breach falls under the Health and Safety in Employment Act 1992. The Act was amended in 2002 and sections added which could fine up to $500,000 and/or imprison for 2 years. As it stands, a company can be charged under the HSE Act and in addition an individual, say the CEO, can also be charged with manslaughter relating to the same event. The thinking is that double-jeopardy does not apply because a situation could arise where the company is found guilty under HSE Act however the employee within the company could not be prosecuted for his actions. Furthermore, a CEO is more likely to be enthusiastic to improving H&S if both the company and he personally could be held accountable for poor decisions and company safety standards.
In New Zealand we need some kind of means to hold corporations accountable for health and safety standards. Of course, this goes against the grain for the corporations themselves and could be another factor in the decision making cycle for a company on whether to remain or set up operations in New Zealand. Which means someone in politics has to set the benchmark here – how much does safety cost? How much is improving New Zealand’s poor safety performance really worth chasing?