Select Committee on Home Affairs Written Evidence

3. Memorandum submitted by the Union of Construction Allied Trades and Technicians

  The Union of Construction Allied Trades and Technicians (UCATT) represents 125,000 members employed in the construction industry throughout the United Kingdom and the Republic of Ireland.

  There are 2.2 million people working in the construction industry.

  The construction industry currently accounts for approximately 9% of GDP.

  UCATT have long campaigned for safe sites and have consistently raised the issue of the disproportionate high level of fatalities, injuries and ill health which affects construction workers.

  Since the beginning of April 2005 there have been 11 fatalities amongst construction workers- an increase of two on the same period last year (2004).

  Year on year there is consistently around 70 construction workers killed at work.

  The Health and Safety Executive has acknowledged a majority of construction related fatalities occur because employers do not carry out risk assessments, yet all too often the fine does not reflect the crime.

EXAMPLES OF PROSECUTIONS FOR CONSTRUCTION FATALITIES

Date	Type of incident	Defendant	Fine £	Costs £	Source
May 2002	Trench collapse resulting in fatality	Lee Sayers and Ernest Ecclestone	3,500.00	Inc in fine	www.bbc.co.uk 9/12/2003
15/10/2001	Contact with moving machinery	Steven Charles Worthington	185.00	0.00	HSE case No F130000358
3/5/2001	Contact with moving machinery	Phillip Sutton	3,500.00	730.80	HSE case No F130000360
25/6/2001	Fall from height	Brett Construction Ltd	4,500.00	3,266.00	HSE case No F030000387
5/9/2001	Contact with moving machinery	Richard Murray T/A Richard Murray Plant Hire	5,000.00	0.00	HSE case No F210000380
7/6/2002	Contact with moving machinery	Envirowaste Services Ltd	6,000.00	1,360.40	HSE case No F230000147
27/6/2001	Fall from height	Alan Swift	10,000.00	0.00	HSE case No F030000367
16/8/2001	Contact with moving machinery	John Charles Parker	13,000.00	2,000.00	HSE case No F100000524
26/7/2001	Fall from height	Total Gutter Maintenance Ltd	12,000.00	7,800.13	HSE case No F030000384

  Research published by HSE in 2000[1] shows that the construction industry remains one of the highest risk sectors in the UK and calculated the fatal and major injury rates for a selection of trades as shown in the table below.

CONSTRUCTION TRADE RISK

Trade	Probability of Death per Year (1993 to 1998)	Probability of Major Injury (1996 to 1998)
Scaffolders	1 in 5,357	1 in 115
Roofers	1 in 3,764	1 in 300
Steel erectors	1 in 3,016	1 in 232
Glaziers	1 in 11,956	1 in 360
Painters and floorers	1 in 19,000	1 in 522
Maintenance workers	1 in 23,000	1 in 300
General operatives	1 in 28,000	1 in 600
Electrical trades	1 in 52,000	1 in 600
Bricklayers	1 in 76,500	1 in 600
Carpenters	1 in 78,000	1 in 512
Plumbers	1 in 80,500	1 in 990
All construction industry	1 in 13,000	1 in 250

  The accident and fatality statistics for construction make grim reading[2]. The construction industry is responsible for about 30% of all industry fatalities despite accounting for 9% of GDP.

FATAL INJURIES IN CONSTRUCTION

Year	Employees	Self Employed	Total Workers	Members of Public	Total
1998-99	47	18	65	3	68
1999-00	61	20	81	6	87
2000-01	73	32	105	8	113
2001-02	60	20	80	5	85
2002-03	56	14	70	5	75
2003-04p	51	19	70	3	73
2004-05p			68	5	73
Total	348	123	541	30	571
p = provisional

FATAL INJURY RATES (PER 100,000)

Year	Employees	Self Employed	Total Workers
1998-99	4.4	2.8	3.8
1999-00	5.5	3.2	4.7
2000-01	6.5	5.0	5.9
2001-02	5.3	2.9	4.4
2002-03	4.9	2.0	4.0
2003-04p	4.3	2.4	3.55

MAJOR INJURIES IN CONSTRUCTION

Year	Employees	Self Employed	Total Workers	Members of Public	Total
1998-99	4,289	367	4,656	378	5,034
1999-00	4,386	363	4,749	403	5,152
2000-01	4,303	405	4,708	316	5,024
2001-02	4,055	540	4,595	381	4,976
2002-03	4,031	690	4,721	263	4,984
2003-04p	4,001	749	4,750	181	4,931
Total	25,065	3,114	28,179	1,922	30,101

MAJOR INJURY RATES (PER 100,000)

Year	Employees	Self Employed	Total Workers
1998-99	402.7	56.5	271.6
1999-00	395.9	57.7	273.5
2000-01	380.9	62.7	265.1
2001-02	356.1	79.5	252.8
2002-03p	354.9	99.1	257.7
2003-04p	335.1	96.1	240.7

OVER 3 DAY INJURIES IN CONSTRUCTION

Year	Employees	Self Employed	Total Workers
1998-99	9,195	381	9,576
1999-00	10,159	345	10,504
2000-01	9,367	429	9,796
2001-02	9,100	595	9,695
2002-03	8,949	629	9,578
2003-04p	8,162	737	8,899
Total	54,932	3,116	58,048

OVER 3 DAY INJURY RATES (PER 100,000)

Year	Employees	Self Employed	Total Workers
1998-99	863.4	58.7	558.6
1999-00	917.0	54.9	604.9
2000-01	829.2	66.4	551.7
2001-02	799.1	87.6	533.3
2002-03	788.0	90.4	522.9
2003-04p	683.6	94.6	451.0

  UCATT has campaigned for legislation that will ensure that all employing organisations, whether they are public, private or voluntary, incorporated or unincorporated and the individuals who own and manage them can be held to account under the law in cases where workers die because of management failures.

  The construction industry consists of approximately 175,000 companies.

  The industry is highly fragmented in terms of construction output so that large companies account for approximately half of all work done and small companies account for approximately one third.

  Nearly 99% of companies employ fewer than five people and account for approximately 60% of total employment in the industry.

  By contrast, less than 1% of companies employ more than 250 people, but account for 22% of total employment. This fragmentation has made it difficult to hold those responsible for accidents and fatalities to account.

  UCATT believes that only by holding individuals at the head of companies to account, with the threat of imprisonment for the most serious failures, will ensure a safer industry for everyone who works in it.

  Senior Managers who are in control of sites where safety is taken seriously will have nothing to fear from these measures.

  UCATT support for Stephen Hepburn's Private Members' Bill, "Health and Safety (Directors" Duties) Bill reinforced this union's commitment to legislation that ensures when individuals cause the death of a worker, the full range of penalties, including imprisonment, are open to the courts.

  The House of Lords and House of Commons Joint Committee on Human Rights in its Scrutiny: Final Progress Report of the parliamentary session 2004-05 welcomes the measures that were proposed as "enhancing the implementation of health and safety law" and they have drawn their support to the attention of both Houses.

  UCATT warmly welcomes the Government's publication of a Draft Corporate Manslaughter Bill and are pleased to be able to respond to this consultation paper.

  It is now more than seven years since an incoming Labour Government promised legislation on this matter, so reform of the much-criticised corporate manslaughter laws is well overdue.

  UCATT are aware that there is no guarantee of there being a final Bill, let alone legislation that makes it to the Statute Books. UCATT calls upon the Government to complete the draft scrutiny process as soon as possible and to introduce a final Bill into this session of parliament without any further delay.

  Although UCATT is keen to see Corporate Manslaughter legislation on the Statute we have reservations about the draft Bill.

  The Government must get this legislation right to prevent many more innocent workers losing their lives in avoidable work-related fatal accidents.

  UCATT considers that in order to get this legislation right, corporate manslaughter law needs to target both corporate and individual guilt and that it should cover all employing organisations. UCATT's analysis of the current proposals shows us that they fail to deliver on these key issues.

UCATT SUMMARY OF CONCERNS WITH COMMENTS

—  The Draft Bill only addresses corporate liability. This is a step backwards from the 2000 proposals in which the Government was seeking views on whether officers of undertakings should be liable to imprisonment.

—  The only penalty that is proposed is a fine against the company. Fines are already levied for health and safety offences and the very few cases of directors or senior managers being jailed for manslaughter has occurred in small companies. Given the high level of injuries and fatalities in construction, imposing fines does not appear to be a severe enough penalty to bring about safety improvements on construction sites.

—  According to the Home Office's own Regulatory Impact Assessment, this draft Bill in its current format will only lead to an additional five prosecutions for corporate manslaughter each year.

—  UCATT has serious concerns about the "senior managers" test that is introduced by this draft Bill. These concerns centre on the way in which negligent organisations could delegate health and safety management to non-senior managerial levels and thereby escape prosecution. However, UCATT would not wish to see anyone other than senior managers individually prosecuted under this proposed legislation.

—  In particular on construction sites there are usually a number of companies to who work is subcontracted. UCATT believes in these circumstances it will be very difficult to prove a gross breach of duty caused by the activities of a senior manager who played a significant role in the decisions or management of the activities of the company that led to the death. UCATT does not believe these proposals will make it any easier to bring a charge of corporate manslaughter than it is at present.

—  The "gross breach" test itself, UCATT believes, could be difficult for juries to establish. It will require juries to consider whether senior managers knew or ought to have known that their organisation was in breach of health and safety legislation. Since there is no legal obligation on directors to ensure their organisation is complying with health and safety law it is difficult to see how juries are supposed to draw these conclusions.

—  UCATT believes that the "profit from failure test", that is proposed, opens up a loophole which could enable negligent organisations to avoid prosecution. UCATT thinks it is unlikely, that a company will have documented an intention to profit from a failure that led to a work-related death.

—  UCATT welcomes the extension of this proposed legislation to cover a number of Crown bodies. However, we still have concerns that given the exemption from prosecution of all decisions involving public policy, every Crown body could potentially escape prosecution for corporate manslaughter by invoking a "public policy defence".

—  UCATT considers there is a missed opportunity to remove Crown Immunity from health and safety offences.

—  UCATT is disappointed that the draft Bill does not cover all employing organisations.

—  UK companies that cause deaths abroad are excluded from the scope of the legislation. This is the case even when the workers concerned are UK citizens.

—  UCATT is concerned that the only penalties that are proposed are fines against the company. We feel that an opportunity is being missed to introduce a wider and more innovative range of penalties such as custodial sentences for individuals and probation orders for companies.

—  No firm commitments have been given about the timetable or details on the mechanics and structure of the pre-legislative scrutiny process that the draft Bill will undergo.

UCATT RECOMMENDATIONS

  If this Draft Bill is to achieve its intention as both a deterrent and a punishment then it is essential that it is able to have the widest possible application. UCATT therefore recommends that the following provisions be included in the final Bill that is presented to Parliament.

—  It is not enough to simply target companies and some Crown bodies. The Bill should include individual liability which can be achieved by:

(a)  Introducing legally binding health and safety duties on company Directors and their Crown body equivalents.

(b)  Allowing individuals to be prosecuted for, and convicted of, aiding, abetting, counselling or procuring the offence of corporate manslaughter. However, UCATT repeat our assertion that it should only be senior managers to which this should apply.

—  The Bill should be amended so that work-related fatalities caused by every level of management are admissible for use in the consideration of corporate liability for manslaughter. In terms of the multiple sub-contracting that takes place on construction sites then this should reflect the practice that decisions about the overall standards on the site lie with the principal contractor and it is they who should be held accountable whether or not they actually employ any staff. This should not prevent senior managers of sub-contractors being held accountable in addition to the principal contractor.

—  The "profit from failure" test must be removed from the Draft Bill.

—  The "public policy" test must be removed from the Draft Bill.

—  Crown Immunity must be removed for health and safety offences.

—  The Draft Bill must be amended so that all employing organisations come within its scope. This will require:

(a)  Crown and Parliamentary immunity to be removed in such a way so that it ensures that all Crown bodies, including Parliament, government departments, government agencies, the prison service, regulatory agencies and the civil service are liable to prosecution for the offence of manslaughter; and

(b)  The extension of liability for the offence of manslaughter to unincorporated bodies.

—  The scope of the Draft Bill must be widened so that companies that cause deaths abroad are liable to prosecution for corporate manslaughter.

—  In order to encourage proactive health and safety management, provide a credible deterrent against negligence and deliver justice for victims, the fines system proposed must be supplemented by an innovative range of penalties, including custodial sentences.

—  The pre-legislative scrutiny of the Draft Bill must begin as a matter of urgency and a final Corporate Manslaughter Bill should be introduced into parliament at the very earliest opportunity.

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1   Construction health and safety for the new Millennium, Health and Safety Executive Contract Research Report 31 March 2000. Back

2   www.hse.gov.uk/statistics Back

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Prepared 26 October 2005