Who'll take the rap?


If deputy prime minister John Prescott has his way, the Government's second term could see the introduction of fresh legislation tackling corporate manslaughter. Concerns are already growing that the proposals could spark the creation of a company fall guy - and in companies with a poor record, create a no go area for health and safety professionals.

In the last ten years the Health and Safety Executive has referred 124 companies to the Crown Prosecution Service for manslaughter charges following incidents involving loss of life.

Of these, prosecutions were initiated in 34 cases. Guilty verdicts were secured in nine - all small companies. Why so few? Because under current legislation, companies can only be found guilty if the prosecution can show that a 'controlling mind' within the company was directly to blame. This has so far proved all but impossible in cases other than those involving small, one-man band operations.

To counter growing public concern at the seemingly unaccountable nature of big business, in May last year the Government announced plans to introduce a new offence of corporate killing which would allow companies to be prosecuted for collective management failure. The Home Office issued a consultation document and in September deputy prime minister John Prescott announced that the new laws would be included in the first Parliamentary session of 2001.

The bill however was notable by its absence in the Queen's Speech in December - and there has been little news of it since. Not surprising perhaps with an election so close - particularly given the controversial nature of some of the proposals.

But despite uncertainty over the exact date when fresh legislation will reach the statute books, with public pressure intensifying over corporate responsibility for health and safety failures since the Hatfield train crash, reach them it will. And when it does, that fresh legislation could bring sweeping changes already the subject of intense debate among those concerned with health and safety in business.

The British Safety Council, which backs the reform of the existing involuntary manslaughter laws applying to companies, revealed last December that most members of Parliament had not bothered to read Prescott's 'Revitalising Health and Safety' document in which his thinking on the corporate manslaughter issue was contained. Only two of the 96 interviewed by the council said they knew the document well, a third had never even heard of it.

Despite this however, the majority agreed with much of its proposals, the most popular of which was the appointment of a named director to be responsible for health and safety.

It is this point which has proven most contentious with business leaders, and, which could prove the area of greatest concern for facilities managers. Why? Because a separate British Safety Council study found company bosses threatening to find a fall guy to take the blame for lapses in health and safety rather than risk a fine or imprisonment themselves.

The Fall Guy
The findings of the study will have been no surprise to health and safety campaign group the Centre for Corporate Accountability which has fought long and hard for more stringent laws. The group has already made the point in discussions with Government ministers that the current proposals simply open the way for appointing a fall guy, and skirt the real issue of corporate responsibility.

'We're proposing that all directors should have safety duties parallel with their financial duties,' says the centre's head David Bergman. 'We back the nomination of a director with responsibility for health and safety but his duties should include keeping the board up-to-date about safety and any lapses. We need to create a loop so that the rest of the board cannot sit back.'

The British Safety Council is also sceptical about the ability of naming an individual director to effect a change in boardroom attitudes to safety issues. It argues that the whole board should take responsibility.

Others think any attempt by bosses to create a fall guy for health and safety breaches will simply be an extension of existing practice. 'Chief executives are saying they will hire scapegoats but in my opinion they already do. Health and safety managers are the scapegoats,' said one manager, who asked not to be named.

Former airport facilities manager David Landers believes a critical issue is to have a safety manager tough enough to push health and safety issues up the board agenda - a place not culturally accustomed to considering such issues:

'Chief executives and managing directors have a certain personality and view of the world. They bend the rules, get around things, cut corners in order to make an organisation successful. If you don't have someone robust enough [to argue the case for health and safety] then all the documents and laws in the world will still not be enough to get the money out of the CEO to do what you want,' he says.

Perhaps the message business needs to receive is that following health and safety best practice doesn't mean that it cannot go about its day to day activities with the robustness it desires. 'Business needs to understand that there is nothing to be afraid of,' says Piers Dennison, health and safety manager at financial giant Merrill Lynch and a member of the British Institute of Facilities Management's health and safety committee. 'There are good business benefits to having health and safety systems. Health and safety is not about preventing people from working but about finding safe ways for them to do so.'

Dennison believes that improving the channels of communication within organisations would go a long way to ensuring that that the board takes health and safety issues seriously. Another health and safety manager, who wished to remain anonymous, echoes his belief:

'We need to take the adrenaline out of this issue. Calls for something to be done usually traipse along behind misery and disaster. The responsibilities have always been there but are being ignored. We need to turn responsibility into action and ensure two-way communication up and down the organisation,' said the manager. 'Turning it into a blame-orientated issue could slow down the process of improving health and safety standards. If it scares people too much they will pass the buck.'

Recruitment Pains
'Passing the buck' of course will not be possible if there is no-one to pass it to. If the Government presses ahead with its nominee-director proposal some firms could face a problem they may not yet have considered. How many health and safety professionals will be willing to join them if they know it will be their neck alone on the chopping block?

'There are companies that I would not take employment with now, particularly with the possibility of this legislation. Those who treat [health and safety] as a necessary evil and don't support it with budgets, procedures and training will find it very difficult to hire professional health and safety staff,' said one health and safety manager.

Of course while the debate continues, real life goes on. And the Government's failure to push through laws on corporate killing before the election means a dilemma for the director of public prosecutions. As there will be no public inquiry into the cause of the Hatfield crash, prosecuting Railtrack under the existing law is the only way the company may be held accountable. Those baying for someone to spend time in prison are therefore likely to be disappointed and will simply add fuel to the fire for something to be done.

'It is a very, very difficult issue,' says Des Collins, the solicitor representing the injured and bereaved from the Watford and Southall train crashes.

'If there is no direct accountability in terms of people going to jail then you are looking at increased financial penalties and they have very limited benefits. If you make a fine high enough that it really hurts then you may force a company out of business or lessen the budget for safety measures. And for some the fine is never enough. It was widely thought that the £1.5m fine after Southall was derisory.'

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