The bill has arrived

Just before Easter, as everyone prepared to go on holiday, the government finally released its draft Corporate Manslaughter Bill. Under this legislation an organisation is guilty of the offence of corporate manslaughter if the way that any of its activities are managed or organised by its senior managers (a) causes a person’s death, and (b) amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.

A person is a “senior manager” if they play a significant role in:

• the making of decisions about how the whole or a substantial part of a firm’s activities is to be managed or organised, or
• the actual managing or organising of the whole or a substantial part of those activities.

A gross breach is a breach of a duty of care by an organisation that falls far below what can reasonably be expected of the organisation in the circumstances.

To decide that question, the jury must consider whether the evidence shows that the organisation failed to comply with any relevant health and safety legislation or guidance. The draft bill does set out a number of other factors that a jury would have to consider, such as whether senior managers sought to cause the organisation to profit from its failure. Critics of the proposed legislation are already concerned that these additional factors will make obtaining a conviction difficult.

This law will affect the suppliers of services, employers and the occupiers of land, which will include premises and building sites.

Some time ago the government made it clear that it would not be targeting individual directors with this law but instead saw it as complementing the health and safety legislation and the common law. This raises an important question: is there any point in it?

The argument for a corporate manslaughter bill is that companies are not being held properly to account for what home secretary Charles Clarke refers to as “gross failings by the senior management which have fatal consequences”. Some have also criticised health and safety legislation for not being tough enough on those who breach its regulations.

Companies directors would no doubt disagree. After the Southall train crash Great Western Trains was cleared of manslaughter but was fined £1.5m after pleading guilty to health and safety offences.

Britain has one of the best workplace safety records in the world. Unfortunately, it also has one of the poorest rehabilitation rates

Moreover a corporate manslaughter law will not really change the position – the maximum punishment will still be a fine. This bill does not target the liability of individuals, so is it just about blame?

Many argue that over-regulation is gradually making the more hazardous building activities (demolition, scaffolding and so on) uninsurable and, as a result, costs will greatly increase. Small businesses are often the hardest hit.

It is disappointing therefore that there has been little or no consideration given to a less adversarial form of regulation and no commitment to more spending on front line services such as health and safety inspectors. The negligence of the few has damaged the perception of the majority who try hard to ensure safe systems in hostile environments.

Nobody seeks to justify the killing of employees or members of the public by the negligence of others. The trouble is that it has been far easier to identify the problem of responsibility for corporate manslaughter than finding a workable solution to it.

Britain does have one of the best workplace safety records in the world. Unfortunately, it also has one of the poorest rehabilitation rates. Time, energy and resource would be better spent improving the rehabilitation of those hurt and producing a workable “no fault” compensation scheme.

The courts’ approach to the health and safety legislation has evolved over a period of time to a point now where there is a good deal of certainty about the obligations that businesses have. One feels that this legislation simply muddies the issues.

Tim Randles is head of employment at the Guilford office of Laytons and a member of its regulatory compliance team