INTRODUCTION

  1.  The GMB is one of Britain's largest trades unions. As a general union, the GMB represents over 600,000 members in a wide range of occupations, working in almost every sector of the economy. Health and safety at work is a key concern of GMB members, and the nature of their work puts many of our members at serious risk on a daily basis.

  2.  As the law currently stands, the GMB believes that it is far too common for gross managerial failures leading to death and serious injury to pass without adequate sanctions being taken against those responsible. It is obvious and apparent that this represents a glaring failure of the legal system—a system that places a legal duty upon employers to take care of their employees, then provides a wholly inadequate remedy when the employer fails to uphold that legal duty.

  3.  The GMB therefore welcomes the opportunity to comment on these long overdue proposals to introduce new legislation covering Corporate Manslaughter. As long ago as 1988, the GMB called for reform of this important area of the law in our publication "Proposals to Reduce Risk to Workers and the Public". This call was repeated in a further GMB publication, "The Freedom to Kill?", published in 1993. Although the GMB acknowledges the complexity of this area of the law, we must preface our comments on the draft proposals by stating our concern that these have taken such an inexcusably long time to emerge. The GMB has been aware of—and expressing serious concerns about—the failings within the existing law for many years, and believes that major reform is imperative if corporate responsibility on health and safety is to be improved, and the relatives of our members killed as a result of corporate failings are to receive the justice that they deserve.

  4.  Whilst the GMB welcomes the publication of a draft Bill setting out proposals designed to tackle the difficulties that currently arise when prosecuting large corporations for the offence of manslaughter, we have a number of major concerns about the proposals, or perhaps more specifically, the lack of certain proposals. In other words, our primary concern is with the omissions from the draft Bill, which is silent on many important issues that the GMB believes must be addressed for the necessary reform of the law to be both comprehensive and effective.

  5.  If the draft Bill is to successfully create a new offence that targets the very serious failings in the strategic management of a company's activities that have resulted in death, the GMB believes that the narrow coverage of the draft Bill must be significantly widened, and specific amendments made to incorporate the issues highlighted in our response below. The case for the current law to be reformed is inarguable, and what is needed is a comprehensive package of proposals that will result in those responsible for gross corporate and managerial failings being properly held to account for their actions.

THE SCOPE OF THE BILL

  6.  The GMB notes and supports the Government's aim of focusing on the wider management failings within an organisation. However, the proposals will not achieve this aim, due to the very narrow scope of the Bill, in addition to a number of serious omissions. These are highlighted in more detail below.

THE OFFENCE

  7.  The GMB welcomes the proposal that an organisation could be found guilty of the offence of corporate manslaughter if the way in which any of the organisations activities are managed or organised by its senior managers causes a person's death and amounts to a gross breach of a relevant duty of care (subject to our comments in paragraphs 11-15 about the limitations of excluding individuals).

  8.  However, we believe that the definition of the organisations at 1(2) to which this applies needs to be clarified, and the bill must be more specific about including "un-incorporated" bodies that employ people. For instance it appears that a company could be charged with an offence under the Bill, but not, for instance, an employer in the voluntary sector. Another example of where employees could be killed with impunity as a result of managerial failure would appear to be the Crown Estates, which are not listed in the schedule and are not under the control of a corporation. GMB members employed in these should be entitled to the same level of legal protection as other workers.

  9.  The draft Bill has ruled out any jurisdiction over the operations of companies which are registered in the UK if a fatality occurs abroad. The GMB believes that the legislation should apply in some circumstances where the fatality occurs outside of the UK—in particular where an worker is killed overseas because of the failure of a UK based corporation to undertake a suitable risk assessment.

  10.  In summary, the GMB believes that the application of the offence must be as broad as possible to ensure protection under the new law for all employees at risk.

INDIVIDUALS AND DIRECTOR'S DUTIES

  11.  The GMB is also dismayed at the proposal at 1(5) that "an individual cannot be guilty of aiding, abetting, counselling or procuring an offence of corporate manslaughter". The legislation must have the capacity to extend beyond a finding of guilt against a corporate body, and should be extended by some means to hold individual directors and senior managers to account if their acts or omissions cause a person's death.

  12.  As drafted, the Bill does not recognise or take account of the extent to which decisions made by individuals who hold power and responsibility within corporate bodies can result directly in the deaths of employees. This must be taken into account for any corporate manslaughter legislation to be an effective deterrent to those individuals who may otherwise make reckless decisions that could result in their employees paying a heavy price.

  13.  The GMB believes that it is essential that measures are taken to introduce an additional offence of "unlawful killing" that would allow the possibility of individual directors or senior managers being held responsible for failing to comply with their duties towards their employees where these have resulted in death. The sanctions for such breaches of the law should include, but not be restricted to, imprisonment. (See below for more information on the GMB's viewpoint about penalties for breaches). Either by extending the provisions of the Bill, or separately, the issue of directors' duties has to be addressed for the Government to have any credible claim that it is tackling the crime of people being killed at work through the negligence of employers.

  14.  The GMB recognises that the draft Bill reflects the view expressed by the Law Commission that it would not be appropriate for an offence of Corporate Manslaughter to look at individuals such as company directors. However, in a previous consultation paper issued in 2000, the Government accepted that without punitive sanctions against company officers, there would be insufficient deterrent force to any new proposals. The GMB agrees with this position, and can see of no clear reason why that does not remain the Government's position, and why that has not been reflected in the draft Bill.

  15.  For the sake of clarity, the provisions of the draft Bill should be extended to introduce clear legal duties for Directors in relation to health and safety at work. If it is the Government's contention that this Bill is not the appropriate vehicle with which to address the issue of director's duties, the GMB viewpoint is that as a complementary measure to this Bill, the Government must look at the responsibilities of directors separately with a view to tighter regulation. There is clearly a need to avoid the scapegoating of front line employees or middle managers, but it is of fundamental importance that criminal liability for management applies not only to the corporate body, but also to its owners, directors, and very senior personnel who are ultimately responsible for the management failure. We therefore urge the Government to consider the issue of director's responsibilities either within, or separate from, this Bill. As a very minimum, the existing guidance on director's duties on health and safety will need to be re-framed to place clear and specific legal health and safety obligations on directors.

INSTITUTING PROCEEDINGS

  16.  The GMB notes at 1(6) that proceedings for an offence under this section may not be instituted without the consent of the Director of Public Prosecutions. We have previously proposed in our submissions to other consultation documents (issued by the Health and Safety Commission, for example) that trade unions should be permitted to issue proceedings on behalf of our members injured at work if the enforcing authorities fail to prosecute for breaches of health and safety law. We would welcome clarification of whether 1(6) means that only the DPP would be able to issue proceedings for corporate manslaughter, or whether the Bill would give the GMB the right to do so (with the DPP's consent) if the circumstances were to arise whereby we considered it necessary to do so in the best interests of our members.

SENIOR MANAGERS

  17.  The GMB believes that the definition of a senior manager as set out in the draft Bill is not clear enough and unhelpful. Additionally, the focus on senior managers alone is too narrow, and does not take into account the complex management structures that can exist in organisations, nor the complexities of much of the modern world of work, which is often characterised by the use of sub-contracting, the use of agency labour and a myriad of other forms of work organisation. An example of the kind of multi-contractor situation where it can be very difficult to attribute responsibility for health and safety failures, that all too often have fatal consequences, is the construction industry. Far too frequently (and by no means only in the construction industry) health and safety failures occur as a result of inadequate, obscure or opaque chains of command in which responsibility for health and safety is effectively evaded.

  18.  The GMB is concerned that the effect of this could be to make prosecutions no easier—or even more difficult—than they currently are. This could arise, for instance, where an individual does not "fit" the definition, or actively seeks to evade responsibility by passing the blame to others within the organisation who are lower down the chain of command, or where a blind eye has been knowingly turned to failures lower down that chain. It should not be possible for less senior managers to be made scapegoats, and the Bill must take account of the existence of managers who have substantial decision-making responsibility, but who are not referred to by job title or classified within a company's formal structure as "senior managers".

  19.  Clarity on this matter is required in order to ensure that the Bill results in a reduction in the likelihood of those guilty of negligence evading prosecution, as has all too often been the case in the past.

GROSS BREACH

  20.  The GMB believes that the Bill must make it explicitly clear that for a gross breach to have occurred, any one of the three tests needs to have been met, and not all three. This could be achieved by inserting the word "or" at the end of each of the three clauses 3(2)(b) (i), (ii) and (iii).

  21.  Further, clause 3(2)(b)(iii) should be amended by deleting the word "profit", and substituting the word "benefit". The use of "profit" has the effect of limiting the intended gain to an organisation to one of monetary value, which may be both difficult to prove and result in unjustified acquitals in circumstances where the prosecution may otherwise have been able to show that other benefits stood to be gained from the failure. It may also exclude other bodies, such as non-profit making organisations etc. We believe that it is unnecessary when assessing whether a company is in breach of its statutory obligations to have to speculate whether a gross breach resulting in the death of an employee was committed with a specific motive—ie in order to make a financial profit—and the effect of this could be to make securing convictions under the Bill very difficult indeed. Ideally, the criteria under this clause should be deleted completely, otherwise we believe that substituting the word "benefit" would go some way towards addressing this problem.

PENALTIES

  22.  The GMB is strongly opposed to the provision in the draft Bill that will simply allow for an organisation found guilty of causing the death of an employee to be fined, and/or a remedial order to be able to be imposed. Clearly, a corporation cannot be sent to prison, and it therefore follows that the proposal to impose fines as a sanction on companies or organisations that are found guilty is a consequence of the incorrect decision to exclude individuals from within the scope of the legislation. We have made reference to this omission already at paragraphs 11-15.

  23.  In our view, this draft Bill represents an opportunity, which has unfortunately not been grasped, to introduce a wide range of more imaginative and innovative penalties than those that are currently available to the courts. For many years, the GMB has been urging legislators to recognise that the sanctions currently available do not have a sufficiently deterrent effect to make a practical and demonstrable difference to the UK's abysmal record of health and safety failures. The price for these failures is paid by employees who are killed, maimed or injured, and it is clear that many companies also do not recognise the additional economic loss that is suffered—by the victims, the economy, and the companies themselves. Despite the fact that the GMB is far from being the only organisation to call for a fresh look at the penalties that could be imposed—and the Government has committed itself to increasing penalties for health and safety offences—the draft Bill has not been used as an opportunity to introduce anything new. This must be remedied.

  24.  In conjunction with the inclusion of individuals within the scope of the Bill, the GMB would therefore wish to see the Bill introduce the option of imposing a range of additional penalties, up to and including imprisonment, upon corporations and individual directors, owners and senior personnel who are found guilty. Amongst these penalties should be:

—  Corporate probation—giving the court powers to impose certain conditions on organisations that will require them to improve their health and safety management systems and practices. These could specify set periods of time during which organisations would have to meet specific requirements that would seek to ensure that the causes of the death were prevented from re-occurring. Examples could include conducting health and safety audits and risk assessments, changing working practices, investing in plant and equipment, employing specialist advisers, improving management systems, consulting and training employees etc.

—  Imprisonment for individuals—the GMB believes that courts must have the option of sending offenders to jail for the offence of killing an employee. We believe that the knowledge that imprisonment could result from a serious failure would have an effect upon the decision-making and actions of directors and managers and help to engender a much-needed change in the management safety culture amongst UK employers.

—  Other sanctions upon individuals and organisations—these could include disqualification from directorship, suspension from office, training orders, corporate community service orders and negative impact orders (which would effectively "name and shame" those responsible). Another measure that could help to mitigate the loss and sense of injustice that often afflicts the families of those killed at work would be to give the power to impose punitive compensatory awards to be paid by corporations to the family of the deceased.

  25.  The aim of our proposals would be to allow the court to pass an appropriate sentence from a "menu" of options, taking into account the circumstances of the case, the extent to which the individual or corporation stood to gain benefit from the health and safety failure, the profitability of the company, and the most effective method to remedy the health and safety failures and prevent any re-occurrence.

  26.  The GMB would also like to see the courts impose fines that are commensurate with the serious of the offence. To be an effective deterrent, one important effect of the Bill should be to send a clear message that this legislation will signal the advent of far larger fines being imposed for a death at work than has previously been the case with prosecutions taken under the 1974 Health and Safety at Work Act. When an employee is killed at work, it is very distressing for the family of the victim to see the kind of paltry fines imposed that leave them with the impression that the death of their loved one is of no more consequence than if the company had failed to lodge their VAT return on time.

CROWN IMMUNITY

  27.  It is important that the new laws apply to everyone, including all public bodies. The GMB welcomes the fact that the Government has accepted that its own departments should be covered, and that the draft Bill will ensure that where a government department or agency is responsible for a death at work it will be open to prosecution. There is no case whatsoever for leaving Crown bodies exempt from prosecution where they have caused a death and the removal of Crown Immunity is essential to ensure that the relatives of those killed at work have the same access to justice as everyone else. We have already commented in paragraph 8 about GMB members who work for the Crown Estates.

  28.  The Government has previously indicated support for the removal of Crown Immunity for all health and safety offences and the GMB believes that this draft Bill should be used as a means to remove this unjustified anomaly once and for all.

SUMMARY AND CONCLUSION

  29.  The GMB believes that it is essential for the Bill to achieve the desired outcomes of improving health and safety standards across both the public and private sectors, helping to prevent deaths of workers and members of the public and providing a sense of justice to the families of those bereaved as a result of corporate failings.

  30.  Whilst we hope that the Bill will be implemented at the earliest opportunity, especially in view of the inordinately long delay in bringing forward the draft Bill for public consultation, it is imperative that the legislation which is enacted is "fit for purpose" and effective. Unfortunately, the proposals as currently drafted offer only marginal improvements and will therefore provide a limited or negligible catalyst for real change. The GMB does not wish to see the Bill delayed any further, but neither would we wish to see long-awaited legislation enacted on corporate manslaughter that is rendered ineffectual through its limitations and omissions.

  31.  The draft legislation does not currently provide the comprehensive framework necessary to prevent or deter further deaths or serious injury. There are a number of positive proposals within the draft Bill, and as such it represents a step in the right direction. However, the proposals it contains need to be built upon through the inclusion of a wide range of additional measures, as outlined in this response above, in order to deliver the kind of significant change in managerial and corporate behaviour that will result in a much-needed reduction in the number of deaths and serious injuries at work.

  32.  We urge the Government to give serious consideration to the GMB's comments, and make the amendments to the draft Bill that are necessary to ensure that a legislative package is developed that will act as an effective deterrent, and help to reduce the number of avoidable deaths at the workplace and beyond. The victims of corporate killing, and their families and loved ones, deserve nothing less.