Rechtsanwalt, Partner, Head of Employment & Reward, Germany
Public Policy Manager
Out-Law Analysis | 15 Jun 2020 | 5:22 pm | 6 min. read
A member of the Scottish Parliament (MSP) has published a private member’s bill which aims to make it easier to hold large companies and their senior managers liable for workplace fatalities.
Claire Baker’s proposed legislation would change the law in Scotland by creating two new offences – causing the death of a person recklessly or by gross negligence – in addition to the current law on culpable homicide. Both offences could be committed either by individuals or by organisations.
The primary purpose of Baker's bill is to remove difficulties in current corporate homicide legislation which make it hard to apply it to different sizes and types of organisation. Its provisions mean that a senior manager could be convicted of culpable homicide if that person is held responsible for causing a death “recklessly or by gross negligence”.
For organisations the recklessness offence is committed where a person, or a number of people when considered together, recklessly cause death while acting within the scope of their employment or on behalf of the organisation; and the gross negligence offence where acts or omissions of a person or organisation amount to a “gross breach of a duty of care”.
The bill could introduce new confusion into the way corporate responsibility for workplace fatalities is assessed.
However, the bill as currently drafted could introduce new confusion into the way corporate responsibility for workplace fatalities is assessed, by broadening current narrow requirements too far.
Attempts to reform the law in this area are not new. The 2007 Corporate Manslaughter and Corporate Homicide Act (CMCHA) was introduced in response to a number of large-scale disasters, including the Piper Alpha oil rig disaster, the Kings Cross station fire and the sinking of P&O Ferries' ship the Herald of Free Enterprise.
It provided that an organisation could be guilty of corporate manslaughter or, in Scotland, corporate homicide where it could be shown that the way in which its activities were managed or organised caused a person's death, and amounted to a gross breach of a relevant duty of care owed by the organisation to the deceased.
Even as this act was receiving Royal Assent, concerns were raised that it created an overly narrow approach to establishing corporate liability. The statistics appear to have confirmed these concerns, with the requirement to show that substantive failure falls at the feet of senior management in larger organisations proving arguably as problematic under the CMCHA as under the previous common law.
To date there have been no prosecutions for corporate homicide in Scotland. In other parts of the UK, the majority of organisations convicted of corporate manslaughter have not been large or complex.
CMCHA introduced a new means of establishing liability through the actions of senior management, in place of the need under common law to find the “directing mind” of the company to be “at fault”.
This concept, known as the identification doctrine, was believed to have hindered prosecutions given that in large modern companies, decision-making is complex and taken at various levels, making it almost impossible to identify individuals of sufficient seniority whose actions were so reprehensible that they could be found to be the actions of the company.
Under CMCHA, an organisation can be found liable where it causes the death of a person to whom it owed a duty of care, and that breach is sufficiently serious to be considered “gross”. The test for “gross” remains an extremely high threshold to surmount, although it is defined more clearly by way of statutory guidance.
Senior management must play a substantial role in the gross breach which causes death - that is, a substantial element of any breach needs to be in the way those activities were managed or organised by senior management.
The rationale for this change and the removal of the identification doctrine was that this would facilitate prosecutions of larger companies and bring home the importance of health and safety.
However, the requirement under CMCHA to identify "senior" management, and for such senior management to be "substantially" at fault, has done little more than broaden the scope of the previous identification doctrine.
Under the terms of Claire Baker’s bill, an individual will be guilty of causing death recklessly where the person is, or ought to be, aware of an obvious and serious risk that acting will bring about death but nonetheless acts where no reasonable person would do so. An organisation will be vicariously viable for that offence if a "responsible person" is guilty of the offence and was acting within the scope of their employment or on behalf of the organisation in doing the acts constituting the offence.
Aggregation is permitted which means that, even although a particular office holder is not guilty of that offence, an organisation would be guilty of the offence if the acts done by a number of different office holders at different times, when considered together, are sufficient to constitute the offence.
An individual is a responsible person for an organisation “if the individual supervises, manages or organises any people or activities on behalf of the non-natural person, or any part of the (organisation’s) activities, as part of that individual’s actual, ostensible or implied duties for the non-natural person” and includes an employee, contractor, consultant, shareholder, director, partner or have any other relationship with the non-natural person.
Death by gross negligence will occur where an individual or organisation acts in such a way as to amount to a gross breach of a duty of care owed by that individual or organisation to another person and that breach causes the death of that other person. A gross breach is defined as conduct falling far below what can reasonably be expected of the individual or an organisation.
A breach of duty of care by a non-natural person may be regarded as the cause of a person’s death despite the immediate cause of death being the act or omission of a natural person.
The bill also provides that a responsible person is guilty of being art and part of culpable homicide "where the responsible person’s conduct forms part of the acts constituting the offence".
Legislative change should always be based on sound legal and moral principles and care must be taken to ensure one form of confusion or inequality is not simply replaced by another, albeit in different terms. Whilst the sentiment behind Baker's bill may be applauded, there is a danger that its terms as currently published may do just that.
Most, if not all, fatalities at work can be attributed to many different aspects of the organisation, right down to the operative's method of working on the day. Very rarely is there one single factor which "causes" a fatal incident. In this respect the bill's apparent attempt to pin liability onto an organisation where its conduct is a cause and not necessarily the cause of death is concerning; it is not difficult to predict a scenario where any cause of death in a workplace can be tracked back to the organisation, not all of which dictate that it should be found liable for corporate homicide.
Moreover, the definition of “responsible person” is impracticably wide as currently drafted and there appears to be no requirement for there to be a link between the activities for which the person is responsible and the cause of death.
Recent case law has also highlighted practical difficulties with vicarious liability and without detailed guidance on the various circumstances to be taken into account in assessing gross negligence, the bill arguably lacks necessary transparency. Where the consequences of conviction are life imprisonment for an individual found to be at fault or an unlimited fine for an organisation, clarity and transparency cannot be compromised.
With strict liability attaching to many offences under the Health and Safety at Work etc Act 1974 (HSWA) and health and safety regulations, making these evidentially much easier to prove, and with statistics demonstrating that the vast majority of these prosecutions are successful, why would a prosecutor seek to pursue charges of corporate homicide against a larger organisation when the prospects of success are more remote and the end result is a fine for the organisation?
An individual within an organisation can already be held to account under the HSWA where the offence can be shown to have been committed with the “consent or connivance of, or to have been attributable to any neglect on the part” of that officer.
Baker’s bill will require some fine tuning and care to ensure that, if passed, the proposed legislation is fit for its purpose.
01 Apr 2020
Rechtsanwalt, Partner, Head of Employment & Reward, Germany
Public Policy Manager