When working is bad for you

The Corporate Manslaughter and Homicide Bill received its third reading in the House of Commons in December. Mick Antoniw, a Thompsons partner, explains what this will mean.

As we go to print, the House of Lords has voted to extend the Bill to deaths in police custody. This defeat for the government risks losing the Bill over one issue (as important as it is), when the Bill is essentially about holding companies to account for deaths at work. This would be a travesty and a disaster for those families who have lost loved ones in workplace deaths and waited so long for a law to bring some justice.

The UK is finally close to having a law that will make it possible to successfully prosecute employers who kill workers as a result of their gross negligence.

Ten years ago the Labour Party committed itself to such a law, one that would hold employers and corporations to account for public and workplace deaths caused by gross negligence.

Disasters such as Piper Alpha and Zeebrugge, Southall (left) and Hatfield made it tragically clear that the existing  law was not working where large corporations are involved.The numbers of workplace deaths each year caused by preventable accidents were unacceptably high, as they still are.

Attempts to charge individual company directors or senior managers of large corporations with what is known in legal terms as gross negligence manslaughter failed disastrously, usually with the charges having to be dropped for lack of evidence linking an individual with the offence.

Controlling mind

Employers and corporations were literally getting away with murder because of the legal requirement to show that an individual senior manager, known as the “controlling mind” had caused the death.

The Corporate Manslaughter Bill creates a new law of " corporate manslaughter " and does not require a “controlling mind” to be identified. The new law is aimed at organisations and not individuals. Its objective is to hold companies and in particular their senior management to account for deaths at work. It is, to a limited extent, the light at the end of the tunnel for the trade unions and victims and public interest groups who have for so long campaigned for such a law.

In terms of punishments, the Bill allows for unlimited fines and the possible use of “remedial orders”.

But unlimited fines on their own are largely meaningless. Once a fine is paid the punishment is done. It doesn’t deter future offences or instigate a change in culture so that future deaths or injuries are less likely to occur.

Thompsons has worked closely with the trade unions,  Labour MPs and ministers to get the Bill amended to include alternatives to fines, including disqualification and imprisonment for company directors who should have a specific legal responsibility for health and safety.

While it is unlikely that  the Government will allow the  Bill to be  changed that dramatically, there is a strong chance that what is being called “corporate probation” will be included as an alternative or addition to fines.

Corporate probation would give the court the power to impose a supervision order on an employer that would compel the company to review its safety procedures and take measures that would result in a reduction in accidents.

The overriding objective of corporate probation is to achieve a positive and long term change to company safety culture.

Further penalties

Depending on the final drafting of the Bill, Courts might also be able to order the company to pay compensation, publicise the offence, notify shareholders, register the offences against the names of directors in the companies’ register and to impose whatever order is needed to get the company to change the way it behaves. Failure to comply could lead to further penalties being imposed.

If corporate probation is included in the new law, it will be among the most far reaching and innovative changes to health and safety legislation in the UK.

Despite the Bill there still remains a glaring gap in health and safety legislation. Directors of companies have no specific legal responsibility for a company's health and safety. The Bill exposes this weakness in the law and pressure is building from the trades unions for a new law or amendments to existing health and safety legislation to create specific legal responsibilities and obligations on company directors for a company's safety performance.

Trades unions understand that until company directors are made accountable attempts to change company safety cuture and save lives will be undermined.

In a society where we talk about rights balanced by responsibilities, if companies are to take their health and safety duties seriously, responsibility for a company’s safety policy and the implementation of that policy must be taken at boardroom level.