When someone dies at work we know it’s a tragedy, but unless we were watching a crime drama, we wouldn’t suspect it was murder, or even manslaughter. Read on to see what risks your business may be taking...
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Every year, people are convicted of gross negligence manslaughter for deaths caused by work, whether of employees, contractors, customers or even passers-by.
In 2018 a charge of gross negligence manslaughter was brought against the Police commander in charge of crowd management on the day 95 fans died at Hillsborough in 1989. The case is due to be heard in 2019. Charges of GNM were considered against the SAS supervisors in the case of the deaths of the three army reservists from heatstroke in 2013, but the CPS concluded there was insufficient evidence. The threshold for bringing a charge of gross negligence manslaughter is high. A jury must consider the facts presented and decide whether the way that the accused individual behaved was merely accidental, or as “so grossly negligent in relation to health and safety that it can be considered criminal.”
Someone who reached that threshold in 2018 was the owner and manager of a fireworks shop. A member of staff and a customer died when an accidental ignition led to an explosion and a fire. The defendant had breached his licence conditions for how many fireworks he was allowed to store. He had packed them too closely together. He had no inadequate measures in place to limit the spread of fire. The prosecution pointed out “He had many years of experience handling fireworks and would have known full well the dangers that existed in running his business the way he did” and that the failures which led to the deaths of the two men “were so serious and so fundamental that they can properly be categorised as criminal.” He was sentenced to ten years.
Gross negligence manslaughter can be applied to driving offences, but in practice it is easier to prove an offence of causing death by dangerous driving. However, when a lorry driver died after he crashed his lorry having driven nearly 600 miles in the previous 19 hours, it was the father and son owners of the haulage business who were sent to jail for gross negligence manslaughter, aggravated by fraud offences. In another lorry incident, where the brakes failed and the vehicle ran out of control killing four pedestrians and injuring two others the driver was acquitted – but the lorry firm owner was sentenced to 7 ½ years, and the mechanic to 5 years 3 months for gross negligence manslaughter.
In February 2016 the sentencing guidelines for health and safety offences and corporate manslaughter were introduced, leading to significant increases in fines for many organisations found guilty of those offences. From 1 November 2018 new guidelines on sentencing for manslaughter committed by individuals could lead to a similar increase in jail sentences for those whose negligence results in a death at work.
The new guidelines apply to different types of manslaughter, including work-related gross negligence. We will focus only on those criteria applying to work-related deaths.
Since a charge of GNM by definition results from a fatality, the consideration of harm risked which applies to sentencing in non-fatal cases does not apply – the highest harm is taken as a fact. The rest of the process can be considered in four stages:
It is surprising perhaps that one issue is not mentioned in the list of culpability, aggravating and mitigating factors. The Hillsborough Police commander is accused of making mistakes on one day. The firework shop manager, and the owners of the haulage firms ran their businesses, day-in and day-out, without regard to the processes necessary to keep people safe. 2019 will perhaps show us whether the courts make a distinction between such behaviors.