130. Memorandum submitted by Prospect
We welcome the opportunity to respond to the
consultation on the draft Bill. Prospect is the trade union formed
by the merger of IPMS (Institution of Professional Managers and
Specialists) and EMA (Engineering Managers Association) and we
represent 104,000 scientific, technical, managerial and specialist
staff in the civil service, related bodies and major companies.
Our membership includes professionals in a number of enforcing
authorities including HSE.
The draft Bill is welcomed by Prospect. For
the first time it will be possible to have companies charged with
a specific charge of manslaughter because of the failings by the
company of senior management.
However, that said, we believe the draft Bill
to be seriously deficient, and combined with the regulatory impact
assessment, the impression is created that the starting point
was not what legislation is needed to tackle the problem. The
impression is instead that the drafting started from an assumed
need for a largely resource neutral measure and the bill was drafted
to deliver minimum impact. It is already being questioned whether
the figure of five cases per annum was the starting point in the
drafting process in order to set the evidential hurdle for cases
at a high level. It would be rather unfortunate if this long awaited
Bill turned out not to fulfil the need after all, and for campaigning
for its reform to begin straight away. We do not believe this
is what the Government intended in preparing this draft and would
urge a rethink.
THE CRITERIA
FOR DETERMINING
A GROSS
BREACH IS
CONFUSING AND
RESTRICTIVE
The explicit requirement for senior managers
to be directly involved in managing or organising the activities
which cause a person's death sets too high a test which we feel
could not have been intended. We agree with the sentiment in the
Introduction, that the test for management failure should focus
"on the way in which a particular activity was being managed
or organised" and that liability should not be "on the
basis of any immediate or operational negligence". It is
right that the responsibility should focus responsibility on the
working practices of the organisation and that it should be targeted
at failings in strategic management rather than at relatively
junior levels. However, the drafting will not achieve this. It
is not necessary to state which individuals within an organisation
should be directly involved. It should be sufficient that the
failings of the organisation as a whole amounted to a gross breach.
A corporate body is a "legal person", under health and
safety law. Its level of guilt depends on the actions of the body
as a whole not of certain individuals exclusively. Failings at
a junior level no matter how serious are unlikely to amount to
a gross breach of the organisation as an entity. However, explicitly
stating senior managers have to have had "their finger on
the trigger" distorts corporate responsibility.
The consequence of the inclusion of words "senior
managers" will be to divert the court's attention to intricate
questions of the degree of involvement of a number of individuals,
even in cases where the jury would otherwise be satisfied that
the behaviour of the organisation as a whole fell so seriously
short that it could be considered to be a gross breach. Evidence
will be needed to prove that senior mangers knew, or ought to
have known about a failure that could cause death. This is a high
evidential hurdle to clear and senior managers will seek to insulate
themselves from that level of knowledge by issuing instructions
to lower levels and only taking high level decisions, sufficiently
removed from the level of detail needed to appreciate the risk
of specific activities. Asking in addition that it also be proved
that they had a profit motive in that failure is an extremely
high evidential test and we know through our collective experience
that even in serious breaches this evidence cannot be obtained
even when there is a strong suspicion that such a motive was involved.
It would be a very foolish manager indeed who ran the risk of
leaving an evidence trail for such a decision to put profit before
safety.
Another problem with the draft Bill is Clause
3.3. The definition in here of "relevant health and safety
legislation or guidance" is unnecessarily restrictive and
is not in line with the way the health and safety system in the
UK is shaped or the way it is developing. There is a great deal
of useful and extremely credible health and safety guidance that
is not produced by the enforcing authorities, but is produced
by industry themselves or bodies such the British Standards Institute,
or internationally recognised bodies. This guidance is often the
"industry standard" which everyone strives to follow
and to which HSE inspectors refer people. But the draft Bill's
exclusion of these sorts of guidance appears to weaken their standing.
There are many examples of this across all industries including
health care, printing, engineering, gas work, electrical work,
etc. Specific examples are guidance produced by the LP Gas Association
on storage of LPG. This guidance used to be published by the HSE
but copyright was handed over to the LP Gas Association several
years ago. Also within the rail industry the relevant standards
on things such as track worker safety are contained in Railway
Group Standards, produced by the industry, not by HSE. This is
increasingly the way industry standards are produced and it is
HSE policy to withdraw from producing specific guidance where
industry can produce it itself. The fact that an organisation
ignored standards or guidance not falling within the definition
in clause 3.3 should not in itself lessen the chances of passing
a test for gross breach, as it appears it could.
Illustrative example
By way of illustration of these problems, consider
the example of a large national company with several dozen commercial
sites around the country. They have regular discussions on health
and safety at board level and have a safety manager who reports
direct to the chief executive. They have comprehensive policies
in place on a whole range of safety issues. They pay a consultant
to carry out regular tours of the individual sites to check on
progress and do audits. The company policy is to give a large
degree of financial autonomy to individual sites which operate
as profit centres. Similarly, this culture of autonomous centres
extends to other areas such as safety. The site managers are instructed
to implement company policy and the board have safety as a standing
item on their agenda but do not get involved in detail. A worker
is killed in a machine. He was following the site's custom and
practice for entry into the machine and the site engineer was
standing by assisting him. The deceased had been shown by the
site engineer how to do the job and been given training. The investigation
revealed that the local procedure did not match the company's
national procedure and that the national procedure was also somewhat
deficient compared to that produced by the industry association
for this work. The company were clearly culpable in not ensuring
that the correct procedures were being applied at each individual
site, they had delegated the responsibility to the local site
and their systems for ensuring control were wholly inadequate.
The consultant had not identified any problem.
It is unlikely that despite there being a high
degree of negligence by the company that there would be any case
for manslaughter under the proposed legislation. It fails on several
tests. Firstly the senior managers may well have insulated themselves
from the commission of this health and safety failure even though
there is a clear systems failure on the part of the organisation
as a whole. A jury could well find that this death was not caused
by the way the senior managers managed or organised the activities.
They had systems in place and the failures were at a lower level
in the organisation, and by a consultant. Secondly, they certainly
did not know of the failing, or that it could lead to death, and
it could be argued strongly that it was not reasonable to expect
that they "ought to have known". They were after all,
busy people, spending long hours keeping the company afloat, and
they had taken all the necessary high level decisions, and had
taken steps to ensure others were dealing with such low level
decisions. Thirdly, there was no intention to profit from this
breach. Finally there was no breach of guidance "made or
issued" by an enforcing authority, since the guidance on
this was published by the industry association even though HSE
were consulted and contributed to its drafting.
The draft Bill should not exclude such cases.
Its intention is stated as being to "target failings where
the corporation as a whole has inadequate practices or systems
for managing a particular activity". The above case ought
to be captured and be capable of being presented to a jury to
let them decide on the facts.
Paragraph 33 of the Introduction refers to the
2000 consultation, and a number of respondents being concerned
about the words "falling far below" and therefore the
draft Bill introduced "statutory criteria for providing a
clear framework". It says these are not exclusive and do
not prevent a jury taking further account of other matters, but
the criteria are restrictive and in our opinion unnecessarily,
and overly restrict the cases to those where someone in senior
management had their "hands on a smoking gun". Many
cases where serious organisational failures result in someone's
death will be excluded and not even brought before a judge and
jury to weigh up the evidence.
PENALTIES
The draft Bill only provides two sanctions.
One is an unlimited fine. The other is a remedial order. There
are already unlimited fines for lesser offences. There may be
no difference in fines for offences of corporate manslaughter
than there are for breaches under the Health and Safety at Work
Act 1974 and the HSE already have the power to make remedial orders.
Consideration should be given to the following
possible penalties:
Requiring fines to be commensurate with the offence
The current level of fines is grossly inadequate
and has little effect on corporate behaviour, indeed, it is often
more cost effective to ignore safety obligations and pay a fine.
Fines should be significantly increased for
corporate manslaughter and the legislation should specifically
require this.
Link fines to profitability
Consideration should be given to fines, which
are linked to the profitability of the company.
Probation orders
Consideration should be given to allow courts
to impose probation orders. A company could therefore be put on
probation, and required to ensure it is compliant with its safety
obligations and is operating in accordance with those obligations.
Negative advertising
Consideration should be given requiring convicted
companies to pay for prominent adverts advising the public about
their conviction.
Punitive awards of compensation
Consideration should be given to giving the
courts power to award punitive damages to be paid by the court
to the victim's family. The jury could determine the level of
damages.
INDIVIDUAL DIRECTORS
AND SPECIFIC
BOARDROOM HEALTH
AND SAFETY
OBLIGATIONS
In its 2000 consultation paper the Government
accepted that without punitive sanctions against company officers,
there would be insufficient deterrent force to any new proposals,
it is therefore unfortunate that the draft Bill takes the view
that it would be inappropriate for an offence of corporate manslaughter
to look at individuals such as company directors. Prospect's view
is that as a minimum, directors of companies with poor safety
compliance should not be allowed to remain directors.
Companies should also be required to appoint
one of their directors as a health and safety director. Such a
director should be required to assess the activities of the company
and how the activities affected the health and safety of its employees
and to consider the safety measures in place and their effectiveness.
A company board should be required to consider information from
the health and safety director, and provide him/her with sufficient
resources and information to do their job.
CONCLUSION
The draft Bill will not, as it stands, achieve
the Government's intention of restoring public confidence that
organisations responsible for loss of life be held accountable
in law. The campaign for justice for victims would not be quelled
by this draft but would likely increase and mean that the Government
would be forced by the next failed expectation of justice to review
a law that was relatively fresh on the statute. However, with
significant amendment the draft has the capacity to be an important
and effective piece of legislation.
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