Corporate affairs

The Home Office is currently considering an avalanche of responses to consultation on its draft Bill on corporate manslaughter. Although the legislation is likely to be enacted during the lifetime of this Government (the actual Bill may appear later this year) we should expect it to be buffeted from all sides as it goes through Parliament.

The draft Bill follows a long string of failed company prosecutions for manslaughter, including the recent Hatfield rail disaster case. It aims to make it easier to prosecute a company if there is a death due to work activity – if it showed a “gross breach of its duty of care” to the deceased.

The draft Bill requires a jury to look at whether decisions by “senior managers” lead to the “gross breach”. They will have to decide if there was “conduct falling far below what can reasonably be expected of the organisation in the circumstances”.

Compliance with health and safety legislation (such as the Management of Health and Safety at Work Regulations 1999) will be a key test. To help firms, the ECA’s ZAP safety initiative provides support to members on how to comply with general, not just electrical safety, regulations.

Working arrangements

While the draft Bill applies to companies of all sizes, small firms have already been prosecuted for manslaughter linked to death at work, so the biggest impact of the Bill may be in big company prosecutions. Such prosecutions would be brought by the Department of Public Prosecutions and the police, with input from the Health and Safety Executive or the local authority.

However, the draft Bill seems to be focused on ‘traditional’ companies and employment situations. We want to ensure that it is clearly applicable to organisations with ‘atypical’ employment arrangements, which means employment agencies and, for example, ‘holding companies’ that command the organisation of employees and others in a subsidiary company.

Although there are practical limits to the scope of the draft Bill, the international nature of employment needs to be considered. This is a growing issue for the construction service industries, with many overseas contractors working in the UK. In addition to developing this Bill, we believe that the Government should work within the European Commission to ensure that overseas companies can be properly held to account if they kill somebody as a result of gross negligence.

ECA members have made themselves less vulnerable to this type of legislation

Finding a gross breach

To find out if there has been a ‘gross breach’ under the draft Bill, a jury must consider whether there is evidence that a company did not comply with safety legislation. If there is, it needs to consider the seriousness of the failure and whether senior managers:

• knew (or ought to have known) that the company was not complying with the legislation or guidance;
• were aware of the risk of death or serious harm posed by failure to comply;
• “sought to cause the organisation to profit from that failure”.

Our general experience is that deficiencies in safety management often arrive by default rather than design and most firms do not deliberately seek to put “profit” before safety. Instead, some do not pay enough attention to safety, being too focused on other aspects of running a business.

In stating this, the ECA doesn’t condone it. However, if there is no evidence that an otherwise negligent firm sought to “profit from the failure”, it could escape prosecution. As the main reason for the draft Bill is to allow justice to be done, these and other issues must be resolved, for example a ‘profit motive’ could be a factor in sentencing, rather than securing a prosecution. The wording of the Bill (and any guidance that goes with it) will need careful attention, and the Home Office now has plenty of suggestions on what it should say.

Finally, we should put the impact of the proposed legislation on ECA member firms in context. Thanks to their efforts, there were no fatalities in ECA firms during 2004. Further, statistics show that major accidents in ECA companies have fallen by 60% in three years. Overall, ECA members have made themselves less vulnerable to this type of legislation, and certainly less vulnerable than other contractors with lower safety standards.

Even so, we need to bear in mind that the draft Bill also covers culpability for killing non-employees such as contractors or the public as a result of work activity. This sobering thought underlines to need to ensure high standards of safety across the board.