ASLEF Corporate Manslaughter Briefing
ASLEF represents 18,000 train drivers across the country and has an increasing membership. Clearly, in situations where health and safety standards are lacking on
Manslaughter charges were brought against train drivers after the Watford and Southall rail crashes but these attempts to scapegoat the drivers were successfully resisted.
We take the view that workplace fatalities are avoidable in the vast majority of cases and are usually caused by fundamental health and safety shortcomings throughout an organisation which can be laid at the door of the managing director, board of directors, chief executive or other senior managers.
HSE Guide HSG65 points out: "Accidents, ill health and incidents are seldom random events. They generally arise from failures of control and involve multi-contributory elements. The immediate cause may be a human or technical failure but they usually arise from organisational failings which are the responsibility of management."
ASLEF supported the Health and Safety (Directors' Duties) Bill which was promoted by Stephen Hepburn MP before the 2005 general election. ASLEF also supports the new draft Bill but with reservations; in our view, the Bill contains weaknesses which should be addressed.
The proposed new Bill would make it possible to prosecute an organisation if there is a gross breach of a duty of care and if a senior manager knew - or ought to have known - about the breach. ASLEF supports this but the scope of the Bill seems to be drawn too narrowly. In the rail industry, as in other sectors of the economy, there are relatively senior individuals who will be in positions of real responsibility but will not fall within the scope of the Bill.
This could be become increasingly so with the glut of takeovers and mergers we have seen in the industry in recent years.
For example, a "route manager" (titles vary) will have responsibility for an entire railway but this may constitute a small percentage of the parent company's operation and he/she will not be covered, therefore, by the Bill.
On the other hand, the Bill's "senior managers" test seems likely to allow negligent companies to delegate health and safety duties to lower levels of management, thereby allowing those actually responsible to escape legal accountability and therefore justice.
The Bill sets out three tests for a prosecution to succeed. However, it is not clear whether one, two or all three tests must be met; in ASLEF's view, it should be necessary to meet just one of the three to get a prosecution.
The "profit from failure" test may open up the possibility of failure among prosecutions because of the likelihood that companies will ensure there is no documentation to demonstrate to prove a pre-meditated plan to profit from failure. Perhaps a "benefit from failure" test would preclude such a situation, or the test should be removed from the Bill (other trade unions and the Trades Union Congress take this view).
The Bill is clearly based on a duty of care. However, it is not clear where precisely that duty lies. For instance, the question of how contractors, sub-contractors and agency workers.
Organisations will be fined under the Bill as it exists and the government has argued that, because a company cannot be imprisoned, there is no alternative to this. ASLEF takes a contrary view. The prevention of accidents, including fatalities, will be helped greatly by the presence of statutory duties imposed on directors and managers. In its present form, the Bill will not have sufficient deterrent force, in many cases, to prevent the sort of inattention to health and safety standards which led to, say, Ladbroke Grove and Hatfield.
That deterrent force should include the possibility of custodial sentences but should also include, of course, a range of lesser punishments.
The draft Bill will leave unchanged the power to disqualify directors and the power to order remedial measures (and, of course, there is no change to the law on individual manslaughter). There should be a series of potential remedial measures available to the courts under the putative legislation.
Many of the above points have been raised, and will continue to be raised, by trade unions and other bodies. In our view, if they are not dealt with the likelihood is that the number of prosecutions arising from a future Act of Parliament will be negligible and this could undermine the credibility of the government among working people, certainly among those who work in the railway industry.
[With thanks to ALSEF political advisor John Cryer and to the Centre for Corporate Accountability]
