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May 12, 2010

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SHE10 – Just who is a senior manager in terms of the Corporate Manslaughter Act?

There is much more to a job title than might at first appear and employees need to think very carefully about their title. Many different definitions of the term ‘senior management’ exist for the purposes of the Corporate Manslaughter and Corporate Homicide Act 2007, David Lewis, head of regulatory services at Weightmans LLP, told a packed SHP Legal Arena.

In terms of the Act, which came into force in 2008 and defined a brand new offence, the definition of senior management is absolutely critical to whether an employee can be charged with an offence. The Act deliberately has a much wider meaning than it had under s37 of HSWA 1974 and it is not just those with ‘director’ in their job title who are vulnerable to prosecution.

Employees should consider very seriously what they are actually expected to do and whether they fall into the category of senior management in terms of the Act. “It is not a mistake that the Act exists in the first place to try to capture those cases that fell through the net under the old legislation and it is not a mistake that it has been widely drawn,” Lewis said.

According to the Corporate Manslaughter Act, a person can be held to be part of the senior management team if they play a significant role in either making decisions about how activities are managed or organised, or if they actually manage them. According to the Ministry of Justice, roles likely to be under consideration as senior management for the purposes of the Act include regional and divisional managers, as well as directors or similar senior management positions. “We are talking about that, and a lot more,” warned Lewis. “The test is what you do, not your job description.”

Lewis urged those involved in headquarters functions, or who have a senior operational management role, or who are considered senior management by their colleagues, to think very hard, as they may be considered liable under the Act. They should also consider the nature and scale of the organisation’s activities and the nature of the business.

If an individual has strategic influence over all or part of a business, helps to shape decisions, or influence other people, they may be considered senior managers. Even if management responsibilities only apply to one site, or even one building, that could be enough to qualify.

In public sector roles it may not be as easy as in the private sector to tell whether people fall into senior management roles. “It is a question of fact in every case. We need to look at what people actually do,” said Lewis. “If there are failures around systems of work, the level of training of the workforce, the adequacy of equipment provided, or the quality of supervision, this could be a failure of senior management and could attract attention on an investigation. If your role means you make or implement decisions around these issues, there is every chance that you are a senior manager.”

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