Coporate liability for workplace-related deaths remains hard to establish - Bruce Craig

Provisional data published by the Scottish Trades Union Congress (STUC) and charity Scottish Hazards revealed 21 workers died as a result of industrial harm in the past 12 months, almost double the 2019 total of 11. Scottish Hazards 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 included.

The figures prompted calls for the Scottish Government to replace the 2007 Corporate Manslaughter and Corporate Homicide Act (CMCHA) with reformed legislation. The STUC said more than 300 workers have died since the law was first introduced, but no prosecutions in Scotland under the Act have been recorded.

However, with health and safety reserved to the UK government, any attempt to reform the law would need to be by Westminster, not Holyrood.

Bruce Craig is a Partner, Pinsent Masons

The CMCHA was introduced in response to a number of large-scale disasters, including Piper Alpha and the King’s Cross fire. It 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, 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.

Under the 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, 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.

It was hoped the removal of the identification doctrine from the CMCHA would facilitate prosecutions of larger companies and bring home the importance of health and safety. However, the CMCHA requirement 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 CMCHA in Scotland. In other parts of the UK, the majority of organisations convicted of corporate manslaughter have not been large or complex.

The latest statistics appear to confirm concerns that there is an overly narrow approach to establishing corporate liability under the CMCHA, 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.

An individual within an organisation can also be held to account under the 1974 Health & Safety at Work Act 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 an officer of that organisation. This may go some way to explaining why there have, so far, been no prosecutions in Scotland under CMCHA.

Bruce Craig is a Partner, Pinsent Masons