SUMMARY

—  Negligence by directors and their Crown body equivalents is causing preventable work-related deaths—Health and Safety Executive research shows that 70% of all work-related deaths are the direct result of management failure.

—  The current law is failing to prevent work-related deaths and failing to hold to account those who are responsible for manslaughter.

—  If corporate manslaughter law is to be effective it must target both corporate liability and individual liability.

—  The Draft Bill is fundamentally flawed because it will only target corporate liability. Consequently it will not make it easier to prosecute and convict negligent directors—or their Crown body equivalents—who cause workplace deaths.

—  Safety in the workplace and justice in the courts requires responsibility in the boardroom. This means placing legally binding health and safety duties on company directors and their Crown body equivalents. The case for legally binding "Directors' Duties" is based on the following:

1.  Directors matter—they make all of the key health and safety decisions in a company.

2.  Directors have no legally binding health and safety duties in current law—yet workers and members of the public do have statutory duties.

3.  Directors' duties would save lives—this was the conclusion of the Work, and Pensions Select Committee based on written and oral evidence submitted to its 2004 report "The Work of the Health and Safety Commission and Executive".

4.  The voluntary code on directors' duties isn't working—research by the HSE shows that the code is failing to change either the behaviour of directors or the culture of the boardroom in respect of health and safety management.

5.  Directors' duties would close the justice gap—in the last 30 years 10,000 people have died in work-related incidents yet only five directors have been imprisoned for corporate manslaughter in that time.

—  The Draft Corporate Manslaughter Bill should be amended so as to include a Directors' Duties Provision.

WHY A NEW CORPORATE MANSLAUGHTER LAW IS NEEDED

  1.  In our view preventable work-related deaths are being caused by fundamental health and safety shortcomings within private and public organisations and by negligence and irresponsibility on the part of those who run them. Evidence of this can be seen in data produced by the Health and Safety Commission (HSC) which shows that, on average, in the UK each and every day of the week one person dies in a work-related incident and each and every day of the week 16 people die from occupational cancers and illnesses.

  2.  And according to research by the Health and Safety Executive (HSE) 70% of all those work-related deaths are the direct result of management failures.

  3.  However, not only is the current law failing to prevent work-related deaths, it is also failing to hold to account those who are responsible for manslaughter. Consequently, we believe that a new corporate manslaughter law is needed because work-related deaths are not being prevented, the guilty are not being held to account and justice is being denied.

  4.  But, if it is to be effective, that new corporate manslaughter law must target both corporate and individual guilt. We are therefore deeply dismayed that, in its current form, the Draft Bill will only target corporate liability—it will not make it easier to prosecute and convict negligent directors—or their Crown body equivalents—who cause workplace deaths.

  5.  And why is that? Well, in the words of the Government it's because: "corporate manslaughter is an offence committed by organisations, rather than individuals, and will therefore carry a penalty of an unlimited fine rather than a custodial sentence."

  6.  The T&G believe the Government are just plain wrong on this fundamental issue: it's not organisations that kill people—It's those who own, direct and manage organisations who, through negligence, incompetence or sheer disregard for the law kill people.

WHY A NEW CORPORATE MANSLAUGHTER LAW MUST INCLUDE DIRECTORS' DUTIES

  7.  We believe that safety in the workplace and justice in the courts requires responsibility in the boardroom. In short, all directors should be held to account under the law. And that means placing legally binding health and safety duties on company directors and their Crown body equivalents. Which is why, working with the Union of Construction Allied Trades and Technicians (UCATT), and a broad coalition of supporters both inside and outside of the House of Commons, we gave our full backing to Stephen Hepburn MP's recent Health and Safety (Directors' Duties) Bill.

  8.  This Private Member's Bill had its Second Reading on 4 March 2005. Regretfully, even though the House voted in favour of the Bill by 28 votes to zero, failure to reach the requisite 40 votes' quorum meant that it was unable to proceed to Committee Stage. But, despite falling victim to parliamentary procedure, the "Hepburn Bill" on directors' health and safety duties did win the debate and it did win the vote.

  9.  The T&G therefore call on the Government to listen to the House of Commons on this issue and amend the Draft Corporate Manslaughter Bill to include a directors' duties provision because:

Directors matter

  10.  There are no individuals within a company more important to ensuring safety in the workplace than directors. It is directors, not companies, who make workplaces safe or unsafe: company directors decide the level of resources that their company puts into health and safety; they decide the extent to which managers within their company prioritise health and safety; they decide whether or not their company is subject to proper health and safety audits; and they decide whether their company is proactive in identifying unsafe practices and how those practices can be changed.

Directors do not have legally binding health and safety duties

  11.  While directors enjoy all of the privilege of power when it comes to workplace health and safety, they carry none of the burden of responsibility:

  12.  Under current law, while workers and members of the public do have statutory health and safety duties, company directors have no legally binding duties to ensure that their company is complying with health and safety law. Instead, all the principle duties under health and safety law are placed on employers (ie companies) and not on directors.

  13.  Placing legal duties upon a company does not place legal duties upon that company's directors because a company has a separate legal identity from the directors who manage it and because duties placed upon the company do not require individual directors to take any particular action, even though their failure to act may mean that the company fails to comply with health and safety law.

Directors' duties would save lives

  14.  Because 70% of all work-related fatalities are the direct consequence of failures by management then, by definition, 70% of all work-related deaths are preventable by management.

  15.  Moreover, domestic and international evidence compiled by the Centre for Corporate Accountability and submitted to the Work and Pensions Committee clearly shows that statutory regulation is a key motivator for directors in terms of preventing work-related fatalities.

  16.  It should also be noted that, having examined all of the evidence and interviewed all of the experts for its report into "The Work of the Health and Safety Commission and Executive", the Work and Pensions Committee concluded that the introduction of legally binding directors' duties on health and safety would "positively impact on the current levels of preventable workplace death."

The voluntary code on directors' duties isn't working

  17.  The HSC published voluntary guidance on directors' duties in July 2001. But research commissioned by the HSE into the effectiveness of the HSC code shows that it is failing to prevent injuries and deaths because it is failing to change either the behaviour of directors or the culture of the boardroom in any meaningful way.

  18.  Since the voluntary code was introduced:

—  The board of directors of one third of large firms have not assumed any responsibility for ensuring their companies operate safely.

—  Fewer than half of all boards ever discuss health and safety.

—  And two thirds of all company boards have failed to appoint a health and safety director as recommended by the code.

Directors' duties would close the "Justice Gap"

  19.  Existing law is fundamentally flawed because the absence of legally binding health and safety duties on directors makes it virtually impossible to prosecute and convict negligent directors for manslaughter.

  20.  Research undertaken by the T&G reveals that in the 30 years since the Health and safety at Work Act 1974 came into force some 10,000 people have died in work-related incidents. Yet, according to research by the Centre for Corporate Accountability, in that same period:

—  Only 11 company directors have ever been convicted of manslaughter following a work-related death.

  21.  And, of those 11 convictions:

—  Only five directors have ever been imprisoned as a result of a work-related death and a manslaughter conviction.

—  Another five directors received suspended sentences for manslaughter.

—  And one director was given a community service order for manslaughter.

  22.  Put simply, by failing to hold individual directors to account the current law has opened up a massive Justice Gap. But the victims of negligence resulting in a work-related death will never get the justice they deserve if the Government's Corporate Manslaughter Bill only makes a legal entity known as "the company" liable under the law for a manslaughter offence. It is not companies who make workplaces unsafe—it is negligent directors. And ultimately it is not companies who kill—it is negligent directors.

  23.  By only targeting corporate liability the Bill will simply rely on a fines based penalty system as it is impossible for a company to be sent to prison. But fines will never act as a credible deterrent, and fines imposed on companies can never deliver justice for the victims of manslaughter.

  24.  The Justice Gap is made even worse by reliance on the HSC voluntary code on directors' duties. Because, even if every company and every director complied with the voluntary code:

—  No negligent director can be held accountable under a voluntary code.

—  No negligent director can be arrested and charged under a voluntary code.

—  No negligent director can be prosecuted or convicted under a voluntary code.

—  And no victim of workplace injury or death can receive justice under a voluntary code.

  Only the law can do all of these things.

CONCLUSIONS

  25.  At best, this Draft Bill may make it a little easier to bring prosecutions against large companies and organisations. But, the Bill will do absolutely nothing to tackle individual liability—and that's its greatest weakness.

  26.  If any corporate manslaughter law is to be effective then it must do three things:

1.  it must help to prevent fatal accidents by acting as a credible deterrent;

2.  it must hold the guilty to account; and

3.  it must ensure justice for the victims of negligence.

  27.  In each case that requires that the law targets guilty individuals, as well as guilty organisations. However, to its detriment, the Draft Bill completely ignores individual liability by focusing entirely on corporate liability. The T&G therefore believe that, in its current form, this Draft Bill is very much a missed opportunity.

  28.  The law will only deliver safety in the workplace and justice in the courts if it ensures responsibility in the boardroom—and that means amending the Draft Corporate Manslaughter Bill so as to include legally binding health and safety duties for company directors.

21 July 2005