The crime of the Corporate Manslaughter Act

Construction is the most dangerous industry in Britain. In 2007/8 72 workers lost their lives in 2006/7 that figure was 79. It is for these reasons that the Corporate Manslaughter Act, which came onto the statue book earlier this year, is such a great disappointment. The problem with the Act is not what it does do but what it doesn’t do. The creation of the offence of Corporate Manslaughter is to be welcomed, but the punishments presumed under the Act do not fit the crimes committed.

Although being charged and convicted of Corporate Manslaughter is a serious matter, is it really appropriate that the maximum penalty is a fine? It is a perverse world where John and Anne Darwin (the canoe man case) can be imprisoned for six years for insurance fraud, but a director or manager of a construction company who is found guilty of killing a worker can only be fined and cannot receive a prison sentence.

The fundamental problem with the Corporate Manslaughter Act is that it did not include provisions, for the implementation of statutory director’s duties (despite being Labour Party policy). Statutory director’s duties would require each company to nominate a director/senior manager to be responsible for health and safety. If a death or serious injury should then occur, there is a clear line of responsibility and if negligence is discovered then there is the possibility a prison sentence could result.

Rather than opt for statutory director’s duties the Government instead opted for a renewal of a voluntary code on director’s duties. This was despite research undertaken by UCATT in our report ‘Bringing Justice to the Boardroom’ discovering that since the introduction of voluntary director’s duties in 2001 just 44 percent of companies had adopted the policy. The fact that the majority of companies have not bothered to adopt the code underlines the policies’ failure.

Our report also revealed why statutory director’s duties are so crucial. When a company does take positive action at director level on health and safety matters, then accidents can decrease by on average 25 percent and in some cases by up to 80 percent. In fact as the law stands there is a perverse disincentive not to require a director to take responsibility for health and safety matters. Under section 37 of the Health and Safety at Work Act a company can be prosecuted as a result of consent, connivance or neglect. However there are no positive duties placed on a company to do this. A director can only therefore be charged if they have breached a legal duty placed on them by the company.

Despite the introduction of the Corporate Manslaughter Act it remains too early to say whether the legislation will have a major effect on the appalling low rates of convictions following the death of a construction worker. The Health and Safety Executive estimate that management failure contributes to the death of a worker in 70 percent of construction fatalities, yet a conviction is only secured in 30 percent of cases. This is not a case of magistrates and judges being unwilling to convict companies of health and safety offences, 95 percent of prosecutions lead to a conviction. The decision not to prosecute is taken at a far earlier stage.

It is hoped that the Corporate Manslaughter Act will ensure that companies convicted after the death of a worker are fined larger amounts. Previously in many cases even when found guilty, for killing a worker many fines have amounted to just a paltry £1,000 or £2,000. An insult to the families of the workers involved. Also it remains to be seen if the court cases which lead to a conviction after a worker is killed at work can be speeded up. The current situation where a case can last for four to five years before a company is convicted is intolerable. The family of the deceased have great difficulty in achieving closure until the legal case has been completed.

In summary the new Corporate Manslaughter Act will make very limited difference to the safety of construction workers. Sadly until there is genuine provision to ensure the possibility that directors who flagrantly disregard health and safety and whose workers are killed as a result can be imprisoned, death rates are unlikely to fall.