One legal firm estimates that only around 5% of workplace fatality prosecutions involve a manslaughter charge against an individual. But convictions are not unknown; this magazine has reported on four in the past 12 months.
From November, prison terms for those found guilty of the offence are likely to lengthen. The new Sentencing Council guideline for courts in England and Wales sets a tariff with a benchmark of two years in custody for those whose negligent behaviour was an uncharacteristic lapse, rising to eight– with an absolute ceiling of 18 – if the offender disregarded a high risk of death resulting from their negligence or was driven by profit or cost saving.
The guidelines are part of an attempt by the highest levels of the judiciary to ensure punishments are better aligned to crimes.
People running businesses are highly sensitive to anything that can adversely affect their organisations’ bottom lines. That is why the last set of sentencing guidelines, for corporate safety and health offences, which drove up the annual total raised in fines from £18m to around £70m, have lifted the profile of OSH management in so many boardrooms over the past two years.
The effect of the fine schedule has even been felt in rising salaries for practitioners and in businesses’ reluctance to leave safety and health posts unfilled for long.
But those in senior posts are also naturally wary of anything that might come back to bite them personally.
As lawyer Paul Burnley noted when the new offence of corporate manslaughter took effect in 2008, the prospect of senior managers being taken to police stations, interviewed under caution and having their mouths swabbed for DNA samples, should be a powerful way to focus their minds on the need to control fatal risks, even if there was no eventual prosecution.
The new corporate killing offence was intended to make it easier to hold larger employers to account for deaths caused by severe neglect of their duties. But the law’s test of organisational guilt has proved no match for the diffuse nature of company hierarchies. The Crown Prosecution Service has yet to make a charge stick on a big employer and the number of cases has averaged just three a year.
Gross negligence manslaughter charges are likewise hard to bring against managers in larger organisations, especially senior ones, since the decision-making echelons between them and those at risk at the sharp end make it tough to show that a death was directly a result of their action or inaction.
But perhaps you don’t need to overburden busy executives with that sort of detail.
“The perception is the reality,” argued Lord Young of Graffham, when he launched his 2010 report for the government on the application of safety and health regulation. That was probably an overstatement but perception is a powerful thing and if those with a final say on an organisation’s OSH resources had a healthy fear that their own liberty might be at stake as well as their organisation’s funds and reputation, practitioners might gain an even more attentive reception.