Calls for reform of corporate homicide law amid surge in workplace fatalities

Provisional data published by the Scottish Trade Union Council (STUC) and Scottish Hazards late last week revealed that 21 workers died as a result of industrial harm in the past 12 months, almost double the 2019 total of 11. Scottish Hazards said it believes the true number of workplace deaths is likely to be far higher when road traffic accidents connected to work, occupational disease and work-related suicides are taken into account.

The figures have prompted calls for the Scottish government to replace the 2007 Corporate Manslaughter and Corporate Homicide Act (CMCHA) with reformed legislation. In total, the STUC said that more than 300 workers have died since the law was first introduced, but no prosecutions in Scotland under the Act have been recorded. STUC general secretary Roz Foyer said it was “unacceptable” and “galling” to see that the number of workers who have died at work in Scotland is on the rise again.

Health and safety law Bruce Craig of Pinsent Masons said: “Employers have a duty to ensure the safety and health of both their workers and others affected by their activities, insofar as reasonably practicable. While it is unclear at this stage which industries and sectors have seen the largest increases in Scotland, the figures will be of concern and will undoubtedly inform the regulators as they carry out their workplace inspections”.

“With health and safety being reserved to the UK government, any attempt to reform the law would need to be by Westminster rather than Holyrood. Failure to comply with health and safety law can already lead to substantial fines and in extreme cases imprisonment,” he said.

The 2007 Corporate Manslaughter and Corporate Homicide Act was introduced in response to a number of large-scale disasters, including the Piper Alpha oil rig disaster and the Kings Cross station fire. The Act 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 widely believed to have hindered prosecutions because, in large modern companies, decision-making is complex and taken at various levels. This makes it extremely difficult to identify individuals of sufficient seniority whose actions were so reprehensible that they could be found to be the actions of the company,” Fiona Cameron of Pinsent Masons said.

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’. But Cameron said the test for ‘gross’ remains an extremely high threshold to surmount, although it is defined more clearly by way of statutory guidance. She added: “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.”

“It was hoped that the removal of the identification doctrine from the Act 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. So far there have been no prosecutions under the 2007 Act in Scotland. In other parts of the UK, the majority of organisations convicted of corporate manslaughter have not been large or complex,” Cameron said.

She added that calls for reforms to the law are not new. “In fact, even as the CMCHA was receiving Royal Assent, concerns were raised that it created an overly narrow approach to establishing corporate liability. These latest statistics appear to confirm 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 Act as under the previous common law.”

“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 cause of a fatal incident. Any attempt to pin liability onto an organisation where its conduct is a cause and not necessarily the cause of death would be 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,” Cameron said.

She added: “Statistics show that the vast majority of prosecutions under the 1974 Health & Safety at Work Act (HSWA) are successful. An individual within an organisation can also be held to account under the HSWA when 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. This may go some way to explaining why there have, so far, been no prosecutions in Scotland under the CMCHA.”