59. Memorandum submitted by Unison
INTRODUCTION
UNISON is Britain's biggest trade union with
1.3 million members. We organise in the public sector, primarily
in local government, the health service, the privatised utilities,
and education. We welcome this legislation which we hope will
ensure that companies and other bodies are accountable for the
manslaughter of their workers and members of the public. We consider
that workplace fatalities are avoidable and are usually caused
by failures in health and safety systems. We therefore support
any new offence which makes it easier to prosecute a company,
or other employing organisation, where a death occurs as a result
of a work activity. This demonstrates justice to both the relatives
and colleagues of the worker.
In recent years we have seen unsuccessful attempts
to secure convictions against front line workers where fatalities
have occurred due to juries unwillingness to convict such individuals.
We believe the overwhelming view of the British people is that
responsibility for such tragedies lies with owners, directors
and very senior personnel.
SCOPE OF
THE OFFENCE
On average five workers are killed at work each
week. Almost all of these are a result of management failures,
and all of them are avoidable. These are killings that are caused
by employers and we believe that it is high time that something
was done to bring to account the people who cause these deaths.
At present it is necessary to show a director
or senior manager of an organisation is liable. This requires
evidence of "gross negligence", and without that there
is no case against an organisation. This means that unless the
person who is prosecuted is found to be the "directing mind"
of company and guilty of manslaughter a company can get away without
facing charges. This is a particular problem with large organisations.
We welcome the proposal in section 3, which
will make it easier to prosecute an organisation where there is
a gross breach of their duty of care and a senior manager of the
organisation knew or ought to have known about this breach. As
the Bill relates to failings in the strategic management of organisations,
rather than failings at junior levels we are pleased to see that
responsibility is set at the senior management level and believe
that this sets the right balance. However we would hope as the
emphasis is rightly placed on senior management there is also
acknowledgement that delegating to more junior staff will not
allow such managers to circumvent the offence (as can happen with
the current legislation). This should be seen as inappropriate
action/senior management failure in itself.
UNISON would like to see greater clarity in
subsection 2 (b) of section 3 so that it is easier to understand.
It is by no means clear whether all or just one of these tests
needs to be met. In any event, UNISON does not feel subsection
2(b)(iii) should have to be an integral part of the offence. If
an organisation fails to comply with appropriate legislation and
knew/ought to have known and was aware of the risks that should
constitute the offence. The fact an organisation also sought to
profit from that failure is important but more relevant to the
issue of the penalty imposed.
More importantly, we believe that concerns previously
raised by workers and/or their representatives' should be taken
into account. Under health and safety legislation, both safety
representatives' and individual workers have a legal right to
draw their employers attention to concerns relating to bad health
and safety practices Where these are ignored by employers and
a work-related death occurs, we believe that this should be considered
a corporate failing.
In subsection 3 of section 3 it is proposed
that the new offence be linked to the standards required under
existing health and safety legislation. This is acceptable to
UNISON. However, as legislation related to health and safety can
be enacted outside of the Health and Safety at Work Act, for example,
the Working Time Regulations, clarity is needed to ensure that
these are also covered within the drafted bill itself. In addition,
whilst health and safety regulations sets out the principles,
Approved Codes of Practice, guidance as well as British and Industry
Standards gives the details on which compliance should be met.
The Bill should therefore clarify that the standard to meet may
also be achieved in this way.
APPLICATION
UNISON believes that this legislation should
cover all undertakings. There are no good reasons why overall
organisational health and safety should be less of a priority
within such bodies. We accept that there may be difficulties in
applying the legislation to certain unincorporated bodies. However,
many of the bodies listed in the draft Bill can and should liable,
for example schools, as these do not have most of the potential
problematic characteristics identified by the Home Office. In
2000 the Government proposed that the legislation apply to the
widest range of bodies and respondents supported this. UNISON
believes there is great public support for the bill to be widened
in this respect, rather than this matter simply being reviewed
after the Bill's introduction.
The Bill has ruled out any jurisdiction over
the operations of companies, which are registered in the UK if
a fatality occurs abroad. UNISON believes that in some circumstances
the legislation should apply—in particular where a fatality
occurs overseas because of the failure of a UK based corporation
to undertake a suitable risk assessment. We consider without such
steps some UK companies may see this as sanctioning lower health
and safety standards (which may be cheaper for them) when carrying
out activities abroad.
SANCTIONS
As a company or organisation cannot be sent
to prison, the Bill proposed sanction is unlimited fines. We agree
with the recognition that in relation to Crown bodies, this is
just recycling money from one department to another.
We therefore recognise the difficulties faced
by the Government in this area and suggest that a full review
be considered to identify alternative ways of effectively sentencing
organisations. Innovative sanctions such as corporate probation
ie where organisations are monitored and forced to provide safety
cases and risk assessments for a specified period and more frequent
inspections during that period, the removal of Directors as well
as naming and shaming initiatives could also be considered.
We welcome the Government's commitment to increasing
penalties generally for all health and safety offences and would
hope that the draft Bill could be used to achieve this. We hope
fines within this bill would be much higher than those previously
imposed to reflect the severity of the offence and also be directly
linked to company profits.
INDIVIDUAL DIRECTORS
The draft Bill reflects the view of the Law
Commission that it would not be appropriate for an offence of
Corporate Manslaughter to look at individuals such as company
directors. However in it consultation in 2000 the Government accepted
that punitive sanctions are more likely to be a deterrent than
simply fines.
We know that it is not companies that are responsible
for killing workers it is the action of people. Clearly we would
want to avoid scapegoating of front line employees or middle managers.
However, we believe that it is fundamental that criminal liability
for management applies not only to the corporate body or undertaking
concerned, but also to owners, directors, and very senior personnel
who are ultimately responsible for the management failure.
We accept that the draft Bill cannot be used
to address this issue, but hope that the Government will consider
the issue of director's responsibilities, in a parallel process.
We believe that legislation covering such individuals
within organisations must be part of an overall strategy to ensure
a proper health and safety culture in workplaces, particularly
as the sanctions proposed in this draft bill will in most cases
be a fine.
CROWN IMMUNITY
We believe that the new laws should apply to
everyone and can see no justification for allowing worse standards
in the public sector than the private sector. For this reason
we very much welcome the proposal to extend this Bill to cover
government departments.
We would hope that this Bill is used as the
impetus to remove crown immunity from all health and safety offences.
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