Corporate killing is back on the management agenda, with developments in the courts and new research on what employers think about it. Last year, the government finally stopped dithering over one of its own election pledges and promised to tighten up the existing law on corporate manslaughter, which is clearly inadequate. In its place, it pledged to legislate to create a new criminal offence of corporate killing, which would apply where someone dies because of a “management failure” that goes way beyond normal standards.
Employers found guilty would face unlimited fines.
There was an audible sigh of relief from employers when there was no mention of a Bill on the subject in November’s Queen’s Speech, but that was just for “procedural reasons” - the Bill is now expected to be published later this spring.
According to employment law specialist David Leckie of solicitors Maclay Murray & Spens, the draft Bill is likely to be more employer-friendly than was initially thought; the “management failure” test has been tightened up, and the offence will only apply to companies as a whole.
That’s still not going to be good enough for employers, according to research by solicitors Norton Rose. Their survey found that two thirds of employers believe that the proposed legislation would be bad for business, and would make businesses risk-averse, 64% thought it would promote a blame culture and 59% said they didn’t think the new law would actually help promote safety.
Somewhat surprisingly, the majority of respondents (79%) thought that one individual on the board should take overall responsibility for safety issues, and 55% thought individual board members ought to be personally and criminally liable for safety failings in their firms.
Norton Rose concluded: “Most companies thought that the only way to effect meaningful change would be to change attitudes from top to bottom. Legislation was seen as ineffective because of inadequate enforcement.”
The survey was based primarily on firms operating in hazardous industries,but the results are probably a fair reflection of attitudes in the grocery industry too. In fact, it’s a shame that food manufacturers weren’t included in Norton Rose’s study; after all, according to Health and Safety Executive figures, food and drink manufacturing has injury levels twice as high as construction.
But no one’s really disputing the fact that the existing legal situation is inadequate. Corporate manslaughter prosecutions have been possible since 1965, but only three cases have been successful: it’s simply too hard to prove gross negligence on the part of one individual who can clearly be identified as the organisation’s “controlling mind”. Chains of command are too complex for that, but it doesn’t stop people trying. The latest case, involving the prosecution of Barrow Borough Council and one of it staff, centres on an outbreak of Legionnaire’s disease which killed seven people. It’s not likely to be successful, but that doesn’t mean employers can afford to relax: they should be aware of the new work-related deaths protocol agreed between the police and the HSE, which means that most work-related deaths will trigger a manslaughter investigation. David Leckie advises companies to check whether they could be at risk of “management failure” in: health and safety policies and procedures; safety management systems, risk assessments and method statements; staff training leading to lack of competence and human error; and inadequate supervision.
The HSE, like the employers Norton Rose surveyed, is clear: leadership on health and safety needs to come from the very top, with a clear board level commitment to the highest standards, and transparent accountability.