The Federation of Master Builders (FMB) is the recognised voice of small and medium-sized enterprises small and medium sized enterprises in the UK building industry. Founded in 1941 and with membership of some 13,000 small and medium sized enterprises, the Federation has a strong background in representing the interests and concerns of small businesses in the sector.

THE FMB POSITION

  The Federation of Master Builders (FMB) has a zero tolerance approach to deaths in construction as it does not accept the inevitability of work related fatalities in the sector. The FMB is committed to assisting the Government in achieving its aim of reducing the number of deaths in construction by 10% by 2010.

  The FMB also welcomes the attempt by the Government to even the playing field in relation to the clearly uneven way in which justice is currently applied to those who operate with scant regard for human life.

  The FMB also shares the concern of the CBI and Institute of Directors that the grossly negligent be separated from the genuinely responsible employers who do everything possible to ensure the safety of their workers and of the public.

  However, while the intention to protect life and punish those who do not is welcomed, the FMB and its members have some considerable concerns relating to how the Government proposals would work in practice. Some of our members fear that, once enacted, the operation of the act may change from its apparent direction and become a tool for persecuting businesses trying their best in order to serve as a deterrent to others.

Small firms

  The Federation is concerned about the position of small firms.

  Small firms find it considerably more difficult to keep up with changes to health and safety legislation and have limited resources with which to minimise risks for their staff and the general public.

  It seems unreasonable to proliferate regulation and changes to regulation, then potentially use non-compliance as the evidence to convict firms and expose them to unlimited fines even when no individual instance of gross negligence can be proven.

  The FMB would like to see greater support for small firms to help them keep up with the latest legislation and best practice so that they can avoid tragedies on site happening in the first place.

  Small firms also lack the resources to be able to adequately defend themselves against a charge of corporate manslaughter. There is the possibility of a firm being charged, acquitted and then subsequently bankrupted by the cost of mounting a justified defence. In an instance such as this, the firm would suffer the effects of the unlimited fine for being found guilty despite having being acquitted of the charge brought against them.

  What legal assistance will be available to help small firms defend themselves against a corporate manslaughter charge?

Liability

  The FMB is also concerned about the issue of trespassers.

  Anecdotal evidence from one of the FMB members recalls an incident some years back where a 14 year old had fallen through a fragile surface on the roof of a building while attempting to break into the premises. He was found the next morning with a broken leg. The firm was subsequently prosecuted for not having adequately warned the would be intruder of the hazard. A hazard which he would not have been exposed to had he not been trespassing in an attempt to commit a felony. This example illustrates how little responsibility lies with members of the public and how unjust the process of determining responsibility, and thus liability, can be on construction firms. With justice able to come to such conclusions, is it not inconceivable that, had the boy been killed by the fall, the firm could also have been charged with corporate manslaughter?

  Incidents of trespass over fencing, clearly designed to keep the public out, and subsequent injury to the trespasser are all too common. Deaths are possible and, with the weight of responsibility firmly on the contractor could corporate manslaughter be another chapter in an already weighty book ready to be thrown at a firm for clear negligence on the part of the public?

  Where does responsibility lie in relation to often complex chains of contractors and subcontractors? For example, a Local Authority hires a contractor. The contractor hires a sub contractor, the sub contractor hires a further sub contractor to do some carpentry and a carpenter dies. This is a simplified example to try and illustrate the complexity of the layering of clients, contractors and subcontractors which could be seen to mirror the complexity of the management structure of a large firm. Liability for taxation has to filter its way through the structure, how will criminal liability apply?

  The above question also raises the question of general client liability, both in terms of domestic clients and the Crown. Both are very keen to cut costs and should, in the view of the FMB, bear greater responsibility when they hire firms without considering the health and safety implications of low cost tenders.

  For example, what responsibility will local authorities carry for corporate manslaughter in instances where they have hired a firm based on the cheapest bid, often an indication that corners have been cut on health and safety, not checked the organisations health and safety practices, and a death has occurred. The FMB considers that local authorities should bear some responsibility for checking the health and safety practices of the firms they award contracts to. The FMB is aware of the recycling of money argument in relation to the unlimited fines and feels that, in these instances, the fine should be paid in compensation to the victims' family.

Individuals within firms

  There is considerable concern within the Federation that failings lower down the management chain could result in the firm as a whole being convicted of corporate manslaughter as a result of individual failings.

Application

  The FMB has concerns relating to the prediction contained in the Regulatory Impact Assessment that there is the expectation of an extra five prosecutions per annum. Members are worried that this will become a target and that our more vulnerable members will fall prey to quota fulfilment or be harshly prosecuted in order to set an example to the construction industry. They are particularly fearful in light of HSE commitment to reduce fatal injuries by 10% by 2010.

  There is also a concern that, in the future, the act may be routinely applied to all prosecutions in cases involving work related deaths in construction.

  The FMB has a further concern about the use of the offence in practice. Between best practice and genuine, undeniable, gross negligence, many degrees of non-compliance with regulation exist. Some firms may be complying with all the regulations as they stood last year, some may be operating best practice in some areas but be unaware of it in others and so on.

  What are the Government's intentions towards those firms that lie between the two clearly defined extremes?

QUESTIONS FROM THE FMB

  Certain issues remain unclear.

  What will be the burden of proof required for a conviction for corporate manslaughter conviction?

  Under what conditions will the Director of Public Prosecutions sanction a private prosecution for corporate manslaughter?

  Will firms be liable for trial for the same crime twice? For example, if a firm are prosecuted, and acquitted, possibly on a technicality, would the firm be open to retrial for the same offence or to a private prosecution again for the same offence?

17 June 2005