Memorandum submitted by the Association
of Personal Injury Lawyers (APIL)
The Association of Personal Injury Lawyers (APIL)
was formed by claimant lawyers with a view to representing the
interests of personal injury victims. APIL currently has around
5,000 members in the UK and abroad. Membership comprises solicitors,
barristers, legal executives and academics whose interest in personal
injury work is predominantly on behalf of injured claimants.
The aims of the Association of Personal Injury
Lawyers (APIL) are:
to promote full and just compensation
for all types of personal injury;
to promote and develop expertise
in the practice of personal injury law;
to promote wider redress for
personal injury in the legal system;
to campaign for improvements
in personal injury law;
to promote safety and alert
the public to hazards wherever they arise; and
to provide a communication network
APIL's executive committee would like to acknowledge
the assistance of the following members in preparing this response:
Voluntary health and safety
guidance for directors is ineffective as it will be ignored by
"rogue companies" who do not take health and safety
Statutory health and safety
duties for directors should be introduced so that all companies
provide a safe working environment.
The need for statutory duties
is reinforced by the increase in workplace fatalities in 2006-07.
The Corporate Manslaughter and
Corporate Homicide Act 2007 is welcome but was still a missed
opportunity to impose individual duties.
The proposed cuts in the HSE's
budget will have an effect on investigation and enforcement and
could lead to many negligent directors escaping prosecution altogether.
There should be an increase
in funding for the HSE so more health and safety inspectors can
be employed, allowing for more inspections to take place.
More widespread inspection should
also drive up reporting standards leading to more accurate health
and safety figures.
Are directors' health and safety duties appropriately
covered by voluntary guidance?
1. The association welcomes any guidance
which can help directors ensure their organisations maintain the
highest levels of health and safety. APIL acknowledges and welcomes
the fact that many directors do implement best practice on health
and safety. The role of directors in this regard is absolutely
crucial. It is imperative, therefore, that any action taken in
respect of director's responsibilities will be effective.
2. It is highly likely that those directors
that would take note of the voluntary code are already addressing
issues of health and safety within their organisations. It is
not believed that, realistically, the voluntary code will have
any impact upon the `rogue directors' who would not. This can
obviously lead to standards of health and safety differing markedly
from company to company. It cannot be right that some workers
face increased risk because their management do not choose to
follow, or simply ignore, the voluntary guidance.
3. If, as APIL believes, the code is not
effective, more lives will continue to be lost or ruined. For
this reason, APIL calls for the imposition of legal duties on
directors for health and safety. It is only through the imposition
of legal duties that ALL directors will be forced to take responsibilities
for health and safety within the organisations of which they are
in charge. This is certainly not to create legal duties for the
sake of legal duty, to create work for lawyers or to increase
the possibility of prosecution. Creating legal duties will require
directors to use the powers they have to make health and safety
a key consideration within their organisation's activities. It
is hoped that the fear of the imposition of sanctions will convince
directors that it will be more advantageous to comply with their
legal duties than not. The most desirable means of creating such
legal duties would be by way of an amendment to the Health and
Safety at Work Act 1974.
4. The need for statutory duties has been
given unwelcome reinforcement by the fact that 241 people suffered
fatal injuries at work in 2006-07, a rise from 217 in the previous
year. There were 77 fatalities in the construction industry alone.
A further 141,350 injuries were also reported. This is an alarming
increase and proves that the voluntary approach will not force
negligent directors' to act and deaths at work will continue to
remain at unacceptable levels.
5. The fundamental argument in favour of
statutory health and safety duties is they will help embed a health
and safety culture within every company. Positive duties will
motivate directors to take a more proactive approach to all aspects
of health and safety within their company. Directors play a critical
role in setting the ethos and standards of a company and if leadership
is provided at a boardroom level then it will percolate throughout
the entire organisation. "Leadership by example" can
only be good for the business and will lead to increased staff
morale and motivation. It can even be argued that directors have
a moral duty to ensure the welfare of their workforce. This is
not simply about making it easier to prosecute individuals. It
is primarily about ensuring the culture of a company is such that
health and safety is treated at boardroom level with the same
degree of seriousness as, say, financial management. It is about
saving people's lives.
6. Part 10, chapter 2 of the Companies Act
2006 imposes a number of duties on company directors. These include
"duty to exercise reasonable care, skill and diligence",
to act "in the interests of the employees", and the
directors must have regard to "the impact of the company's
operations on the community and the environment". There was
no specific duty to promote health and safety. The act proves
that the Government recognises that directors do have responsibilities
for other issues rather than just maximising profits. There can
be no excuse, therefore, for arguing that health and safety duties
will impose unnecessary and burdensome regulations: duties which
help to save lives are, and never will be, unnecessary or burdensome.
7. APIL welcomed the Corporate Manslaughter
and Corporate Homicide Bill but was disappointed there was no
provision for directors' health and safety duties within the bill.
The new offence applies to companies only and secondary liability
is specifically excluded. It may well encourage some companies
to improve health and safety procedures but culpable individual
directors would still be able to hide behind the `corporate veil'.
The act does not, therefore, provide adequate incentive for directors
to take full responsibility for health and safety issues.
Does the HSE have sufficient resources to fulfil
its objectives as the health and safety regulator and meet its
8. The increase in workplace fatalities
coincides with the news that the Department for Work and Pensions
(DWP) is expecting the HSE to make cuts of 5% from its spending
in each of the next three years. HSE's workforce is also to be
reduced to 3,100 by April 2008 from 4,162 in April 2003. The subsequent
effect on investigation and enforcement could lead to many negligent
directors escaping prosecution altogether.
9. APIL suggests that there needs to be
an increase in funding for the HSE so more health and safety inspectors
can be employed, allowing for more inspections to take place.
It was disturbing to hear Geoffrey Podger, chief executive of
the HSE, stated, in his oral evidence to the Committee, that prosecutions
were increasingly using up the resources spent on inspection.
Whilst prosecutions are clearly welcome, it would surely be more
cost-effective to concentrate resources on preventative action
such as inspections. Mr Podger himself admitted that this has
led the HSE to concentrate on reactive rather than proactive work.
This will ultimately make inspection and enforcement more effective.
Does HSE get the balance right between prevention
and enforcement? Are penalties for health and safety offences
10. The best means of ensuring compliance
with health and safety law, APIL suggests, is the wholesale adoption
of a safety culture both within businesses and society. If health
and safety were to be given its proper importance within the corporate
agenda, and breaches of health and safety were seen by the public
as deserving severe punishment, APIL believes that the amount
of ill-health and injuries occurring within businesses would fall
dramatically. This would lead to financial savings in the long
11. APIL feels that the use of sanctions
and penalties should not be overly constrained by the need for
the enforcement to be "proportional to the seriousness of
the breach and the risk that the breach creates". Health
and safety law exists to protect both workers and members of the
public from death and injury. Every breach of it should be taken
seriously. Dealing with breaches proportionately may equate, in
some instances, to tolerating breaches. APIL considers this unacceptable.
If health and safety in the workplace is to be improved, employers
must be aware that consequences will follow a failure to comply
with the relevant legislation.
12. HSE statistics show that there were
41,496 inspections in 2006-07, down from 54,717 in the previous
year. This equates to an inspection on average every 14.5 years
for every HSE enforced workplace. Inspections are obviously not
the only method available to the HSE but they are one of the most
important and effective. More widespread inspection should also
drive up reporting standards leading to more accurate health and
13. The fundamental point is that businesses,
society and individuals all benefit if health and safety is regarded
with the utmost seriousness. Prevention and education are far
more desirable, financially and morally, than injury and punishment.
Stringent health and safety is not a drain on resources or an
excuse to impose red tape; it is one of the hallmarks of a civilised