Work can kill

How corporate manslaughter and corporate accountability relates to you and your laboratory, whatever its size

Work related deaths in the laboratory are rare events, however the death of a Medical Research Council employee in Edinburgh, from asphyxia, whilst dispensing liquid nitrogen in October 1999, and the subsequent prosecution by the Health and Safety Executive resulting in a £25,000 fine, led many laboratory managers to review their practices and ensure that any foreseeable mishaps were adequately covered by their risk assessments.

This article reviews the law and background surrounding the current Corporate Manslaughter Bill before Parliament and its relevance to laboratory managers.

In May 2000 the government published a consultation document in which it formerly accepted the Law Commission’s 1996 report on Involuntary Manslaughter and the recommendations concerning the enactment of a new offence of corporate killing.

This would apply where:
a company’s conduct causes a death, i.e. the way in which its activities are managed or organised, fails to ensure the health and safety of persons employed in, or affected by, its activities and

a company’s conduct falls below what can be reasonable expected in the circumstances.

Over 150 responses were obtained from the consultation exercise. These came from a wide range of organisations covering industry, unions, the public sector and victims’ groups, as well as from members of the public, and gave strong support to the proposal for a new, specific offence of corporate manslaughter. Therefore in March 2005 the Government published the Corporate Manslaughter Bill, which is currently before Parliament and will, according to the Home Office Minister Fiona McTaggart, become law by the end of the current Parliament.

The need for legal reform
At present in English Law there are two general homicide offences - murder and manslaughter. The most serious is murder, which requires proof of an intention to kill or cause serious injury. If there are mitigating circumstances, such as provocation or diminished responsibility, then the offence is one of manslaughter - often referred to as voluntary manslaughter.  However, if someone kills but did not intend to cause death or serious injury but was blameworthy in some other way, then this is often referred to as involuntary manslaughter.

Involuntary Manslaughter is one of the most frequently prosecuted common law offences and has not been the subject of any form of statutory intervention. It has been the subject of much controversy, for example, what degree of fault has to be shown to incur criminal liability for gross negligence manslaughter.

Deaths arising from work generally arise due to ‘carelessness,’ ‘negligence’ or ‘recklessness’ rather than a deliberate act by a director of a company, the charge of manslaughter has therefore been deemed appropriate for dealing with deaths arising from corporate activity where an employer:

• creates or condones a risk of death to his employees or members of the public; and
• the risk is serious (not insignificant) and objective; and
• by indifference to that risk through gross negligence or recklessness that a jury may think would justify a criminal conviction for manslaughter.

For any criminal offence to be proven mens rea (mental state, a guilty mind) has to be demonstrated. In the corporate context this has meant it was necessary to determine the individuals within the organisation with sufficient authority and responsibility that they may be considered the ‘controlling mind’ of the corporation.

Such necessities can lead to problems for the public in understanding why a Judge in any given case has awarded a particular sentence.

It is also notable that juries often find it difficult to distinguish whether criminal negligence or recklessness has occurred rather than a simple act of omission by an individual.

There have been, in recent years, a number of disasters which have evoked demands for the use of the law of manslaughter and failures to prosecute successfully have led to a perception among the public that the law dealing with corporate manslaughter is inadequate. This perception has been heightened because the disasters have been followed by inquiries which have found corporate bodies at fault and meriting very serious criticism and in some instances there had been successful prosecutions for offences under the Health and Safety at Work etc. Act 1974.

These disasters have included:

• The Herald of Free Enterprise disaster on 6 March 1987 where the jury at the inquest returned verdicts of unlawful killing in 187 cases and the Department of Public Prosecutions launched prosecutions against 7 individuals and the company. These cases failed because the various acts of negligence could not be aggregated and attributed to any individual who was a 'directing mind.'

• The King’s Cross fire on 18 November 1987, which claimed 31 lives. London Underground was criticised for not guarding against the unpredictability of the fire and because no one person was charged with overall responsibility, the company escaped prosecution.

• The Clapham rail crash on 12 December 1988, which caused 35 deaths and nearly 500 injuries. British Rail were criticised for allowing work practices which were 'positively dangerous' and the inquiry stated that the errors went much wider and higher in the organisation than merely to be the responsibility of those who were working that day. 

• The Southall rail crash on 19 September 1997 which resulted in 7 deaths and 151 injuries. In July 1999 Great Western Trains (GWT) pleaded guilty to contravening section 3(1) of the Health and Safety at Work etc. Act 1974 in that they failed to ensure that the public was not exposed to risks to their health and safety. They received a record fine for a health and safety offence of £1.5 million for what Mr Justice Scott-Baker described as ' a serious fault of senior management'. The judge had earlier ruled that a charge of manslaughter could not succeed because of the need to identify an individual whose gross negligence was that of GWT itself.

More recently  on the 1st September  2004 , Mr Justice Mackay, ruled that the lack of evidence for a controlling mind would lead to the failure to convict three directors of Railtrack for Corporate Manslaughter following the Hatfield train derailment in 2000, and in consequence the charges against them were dropped.

Given the above requirement for a ‘controlling influence or mind’ the criminal law may be seen as biased against small companies where a single individual is easily identifiable as the ‘one to blame’ whilst large organisations avoid criminal charges because accidents are due to the collective failure of the companies’ management systems, which have complex structures leaving no single manager responsible for the entire action. Since 1992 there have been 34 prosecutions for work-related manslaughter, but only six, small, organisations have been convicted. For example in December 1994, the managing director of OLL Ltd. was given an immediate custodial sentence of 3 years plus a fine of £60,000 following the death of four teenagers off Lyme Regis, whilst on a canoe trip organised by the defendant’s leisure activity company.

The new bill
The draft bill before Parliament sets out proposals for a new, specific offence of corporate manslaughter. An organisation would be prosecuted for this, if a gross failing by its senior managers to take reasonable care for the safety of their workers or members of the public, caused a person’s death. The new offence would apply to all companies and other types of incorporated body (including many in the public sector, such as local authorities), and, for the first time, Government departments and other Crown bodies would also be liable to prosecution.

The UK has a very strong health and safety record but there remains unacceptably high levels of work-related deaths each year. The Health and Safety Executive (HSE) considers that the majority of these are preventable and thus the extra deterrent effect of a possible corporate manslaughter conviction for organisations that consistently fail to meet proper standards of health and safety will provide a further driver for ensuring safe working practices.

The offence
Drawing on the Law Commission’s 1996 proposals, the new offence would be based on failures in the way an organisation’s activities were managed or organised – referred to as a ‘management failure’. This approach focuses on the arrangements and practices for carrying out the organisation’s work, rather than any immediate negligent act by an employee (or someone else) causing death in the workplace. This is intended to replace the identification principle for a controlling mind with a basis for corporate liability that better reflects the complexities of decision-taking and management within modern large organisations, but which remains relevant for smaller bodies.

The management failure must amount to a gross breach of the duty to take reasonable care; the main consideration is therefore the extent to which the accused’s conduct departed from the standard expected of any reasonable person in that position. Thus other precedents will be taken into account such as the laboratory death from asphyxia mentioned above and of course compliance with the wealth of published Approved Codes of Practice for the management of safety.
 
An important element of the new offence is that the management failure must have caused the victim’s death. This means that the management failure must have made more than a minimal contribution to the death and that an intervening act or omission did not break the chain of events linking the management failure to the death.

Management failure by senior managers
The core of the new offence lies in the requirement for a management failure on the part of the senior managers. The test for a management failure therefore focuses on the way in which a particular activity was being managed or organised. This means that organisations are not liable on the basis of any immediate, operational negligence causing death, or indeed for the unpredictable, maverick acts of its employees. Instead, it focuses responsibility on the working practices of the organisation.

This ensures that the new offence is targeted at failings in the strategic management of an organisation’s activities, rather than failings at relatively junior levels. In particular, this allows senior management conduct to be considered collectively, as well as individually.
 
The definition of a senior manager is drawn to capture only those who play a role in making management decisions about, or actually managing, the activities of the organisation as a whole or a substantial part of it.

What amounts to a substantial part of an organisation’s activities will be important in determining the level of management responsibility necessary for the application of the new offence. This will depend on the scale of the organisation’s activities overall. It is intended to cover, for example, management at regional level within a national organisation such as a company with a national network of retail outlets, factories or operational sites. Whilst levels below this will potentially be covered depending on whether business units can sensibly be said to represent a substantial part of the organisation’s overall activities. The definition will therefore apply with different effect within different organisations, depending on their size.

Corporate accountability
Accountability will be enhanced by the new law; at present large negligent companies can escape prosecution for a homicide offence. This law would ensure companies could be held to account for criminal conduct, which results in the death of an employee.  A conviction would result in a significant fine, disqualification of directors and serious consequences for a company’s reputation. Thus no company will want to be convicted of such a serious offence and thus deterrent is the true value of the proposed legislation. In addition corporations would be compelled to address the failures that caused a death and put safety first for the benefit of the rest of the employees as well as the public, rather than considering the event as an unfortunate single event in the company’s history.

Prosecutions for fatalities at work
One of the country’s largest food and drink manufacturers, Nestlé UK Ltd, was on 30 May 2003 fined £220,000 with £30,000 costs following a fatal accident in 1999, when a contractor’s employee was electrocuted undertaking work at Nestlé’s factory in Nestles Avenue, Hayes, Middlesex. The man’s employer, Monotronic Ltd, was fined £25,000. The Health and Safety Executive prosecuted both companies after the accident on 25 November 1999. Anthony Allen, an electrician for Monotronic Ltd, Lind Road, Sutton, Surrey, was electrocuted while pulling out redundant cables from trunking in the coffee plant in the Nestlé factory.

In July 2003 the HSE investigated a fatal fall through a fragile roof in Liverpool. The deceased was a 52 year old general labourer who died in hospital after he fell through the roof onto the floor of the premises below. The deceased had been working for a company that had been contracted to clean and repair the skylights in the roof of the building. The company occupying the premises had failed to inform the contractor of the fragile nature of the roof, and had failed to operate its own contractor control procedure and allowed their own staff to work below the roof which was being repaired. The contractor was not equipped to carry out roof work and was unfamiliar with basic precautions.

Both companies involved were prosecuted under the Health and Safety at Work etc. Act 1974. The company occupying the premises was fined £130,000 and ordered to pay £39,000 costs, whilst the company contracted to carry out the work was fined £3,000.

The significance of these and similar cases is that it is invariably the companies, which could be laboratories, and not the contractor who is heavily fined, as they are held to have a greater responsibility for the welfare of the contracted staff whilst at their premises and thus by implication, a greater responsibility for the death of the individual involved.

By Dr P V Tearle, Baroona, Bedfordshire

References
1) Reforming the Law on Involuntary Manslaughter: The Government's
proposals. The Home Office, London. The Home Office Communication
Directorate May 2000.

2)      Corporate Manslaughter: The Government’s Draft Bill for Reform
         March 2005 Cm 6497