There has been, for many years, a call for companies to be more responsible for safety and welfare of their employees. Cases such as as the decapitation of Simon Jones have lead to ever greater regulation of Health and Safety at work and the pathetically toothless Corporate Manslaughter Bill.
The reason that the act is so ineffective is that there is no individual liability, (see clause 18 of the bill), and as a result no "mens rea", (a controlling, guilty mind), so even if someone is responsible for a death through criminal negligence, the company effectively shelters them.
A better way forward would surely be to remove the tedious, time wasting and economically detrimental reams of forms and replace them with a law that focused on the controlling mind. To that end I suggest that each company have to nominate a safety director who would be criminally responsible in the event of a failure to take reasonable steps to prevent injury to their employees.
It would be for the prosecution to prove that the reasonable steps had not been taken, (yes, more onerous but if you believe in justice then reversing the burden of proof is unconscionable), and there would be an extra defence in full; if the safety director had brought problems to the board and then been overruled, he/she would escape liability but the rest of the board would be liable.
Given that this approach would identify the mens rea, I would expect the sentencing to reflect that of manslaughter by gross negligence, which is to say, a prison term determinate on the severity of the negligence.
All those with bright ideas welcome on this one, there may well be consequences to this that I have not thought through but it seems like an elegantly efficient way of dealing with employer responsibilities.
Libertarian meat eater, right wing in the sense of conservative with a small c.
Tuesday 29 April 2008
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13 comments:
One obvious consequence; who, in their right mind, would apply for such a post?
One of the reasons prosecutions fail - such as the one in the wake of Hatfield - is that there never was a mens rea. The organisation - Railtrack/Network Rail - is a many tentacled beast and identifying one or two guilty people at the top is nigh on impossible. The evidence trail went cold well before it got to the board.
Nearly forgot - if justice is to be served, is it best served by prosecuting someone who, with the best will in the world has no direct control over the activities of the people carrying out the ground level duties that lead to catastrophic failure?
Given the defence I outlined I don't think that it would be too much of a problem to get people to take the post, (if there was additional compensation required then the savings from current H&S requirements would vastly more than make up for it). They would of course have to do their job properly but I don't view that as too onerous a task.
As to you second point, this idea would specifically identify the mens rea, either the safety director or the rest of the board.
That was quick, those on the ground do not have control over general procedure. In such a cercumstance as you describe the controlling mind would be easily identifyable as the person who failed to carry out the duties that they were obliged to perform.
Frankly, even with the defence outlined, I wouldn't take the gamble. There is far too much of a gap between the responsibility of setting policy - over which high level management has control and the effective enactment of that policy lower down the command structure. With a large organisation, this becomes even more difficult.
I speak from experience with Network rail where lower levels of management can actively work against policy when it suits them. It is only when things go wrong that this become apparent.
If I was to be expected to take the rap when things go wrong, i would want direct management responsibility over those enacting the policy - and that just isn't practical. The outcome, I suggest is that the really talented would look at the deal and walk away to less onerous roles.
That's why I am suggesting a fairly easy burden, the prosecution must show that the director failed to take "reasonable steps", if middle management has been deliberately working against them and this was not immediately evident then they would have taken those steps.
Don't forget the Private Eye cartoon, when this whole sorry bit of legislation was first being proposed: A spotty youth was attending his first board meeting and the speech balloon from a wiser director said: "And you, Grotley, are appointed as Director with Special Responsibility for Going to Prison".
There have been over thirty years of the Health & Safety at Work Act, within which there are specific provisions for any Director, Manager or Officer of a Company to be individually prosecuted if their consent, connivance or neglect led to an offence being committed. That it hasn't been used much doesn't necessarily mean that more legislation is needed. It might mean that, as Longrider has suggested, there isn't the evidence to "get" the individual you wish to see punished.
I think also you have missed the point in describing the Corporate Manslaughter Act as without teeth. Its principal, vindictive, purpose is to destroy the companies that are prosecuted under the act. Destroy the jobs of the co-workers of the dead as punishment. I think something has been missed here. It is not something I would be proud of in the slightest.
If the company takes the hit then the company is going to make sure they take reasonable steps to prevent it. But as longrider says, organisations are tentacled bests and trying to pin the blame is usually difficult.
I personally would not want to take up any post where there was the chance of a criminal prosecution from hazards largely beyond my control.
Indeed, it is the lack of direct control that worries me. To face prosecution for acts or omissions by someone over whom the director has no personal control and may not have met is not justice - even given the defence suggested. To be an effective defence, it would have to take that into account and, therefore, would lead to prosecutions failing. Much like now, really.
Errr, ummmmm
Make each and every director personally liable ????
Yanno, like they were engaged in a joint enterprise?
I agree with Yokel that the reason there have been so few prosecutions of directors and managers etc under the Health & Safety at Work Act 1974 is the lack of evidence. I also agree with ssof said’s comments - i.e. impose a duty to take reasonable care on all the directors. However, in my opinion it would still be necessary to appoint a safety director, registered at Companies House. The company should be required by law to provide the safety director with a course and manual perhaps compiled by the Health and Safety Commission or the Centre for Corporate Accountability. The safety director must be told that it is his/her job to discuss safety issues at board meetings. If the rest of the board unreasonably fails to do what the safety director reasonably suggests, the rest of the board, not the safety director, would then be responsible. This would get around the ‘safety director as scapegoat’ problem. This would also mean the safety director would have an acute interest in bringing up safety issues at board meetings and keeping the minutes (so he or she can escape prosecution if a death occurs). Perhaps provision could be made to register these minutes at Companies House? This is the vital evidence that is normally missing. Such a legal change would also help improve safety which after all is the whole point. For example, suppose you as a member of the public saw a roll on, roll off car ferry leaving the harbour with its bow door open. Every sailor appreciates how dangerous such an action is – indeed ‘batten down the hatches’ has a general meaning as a result. This member of the public could contact Companies House and the safety director of the company owning the ferry in question. The safety director would then have no choice but to bring up this safety issue at the next board meeting and if the rest of the directors unreasonably did nothing and a disaster occurred (e.g. The Herald of Free Enterprise), the rest of the directors could be charged with manslaughter, not the safety director.
Having a registered safety director with his or her own personal interest in passing the buck to the directors, would stop employees and members of the public being fobbed off into ‘Personnel' or ‘Customer relations' land.
If you agree with this suggestion you may be wondering why the government has not implemented this idea. Now that is an interesting question and probably the answer lies with the CBI, which in my opinion has a knee jerk habit of screaming like a stuck pig at anything which it doesn’t immediately see as a hand out or a measure to maximize profits. If only the CBI and big business would use their brains and think for a moment. From an industry point of view it is much better that people don’t die as a direct result of the work done, because police inquiries and a possible trial, at best gets in the way of making money. HSE has figures showing the costs to business of deaths and injuries.
Now we are stuck with the new law, which makes it easier to charge a company with manslaughter and so means that it will be even less likely that a director will be in the dock for manslaughter. The unlimited fine could always be imposed under an offence under the Health and Safety at Work Act 1974 anyway.
If your son went to work and died as a result of the gross negligence of the business, would you be satisfied with an unlimited (but usually low in terms of corporate profit) fine on the company or would you rather your son had not died because the directors took safety seriously? (Even if it was only because they didn’t fancy being in prison for manslaughter for gross negligence).
Law can be a tool to improve life, health and happiness. If you agree that there should be general duty imposed on all directors to take reasonable care, plus the appointment of a safety director, who has a defence if he or she passed on concerns to the other directors, who then did nothing, please let me know. We might even get the law changed.
Must take issue with Sea Lover about the effectiveness of the punishments under this Act. The fine is about 7.5% of turnover, with no allowance to be made for (lack of) profitability. Publicity orders will require the guilty to advertise their conviction in at least the local papers and the trade press. No company will survive that on top of the disruption caused to the business by the investigation, and the civil claims. It is designed to make the business fold. It will be bad enough for the co-workers of the dead person to have to cope with their loss. To be forced to cope with finding a new job as a consequence of working in the same firm as the dead person is taking collective punishment a deal too far. Even for this government.
Yokel, I believe that you are correct about the consequences of the current act, it is to address this, the safety of the workers and to remove the adminstrative nightmare that is H&S form filling that we need to find a better way of doing it.
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