BCL senior associate Tom McNeill examines the responsibility and culpability of employers for the failings of their employees. The article has been published by Reports Legal.
Here is a short extract from the article*. If you wish to read the full article, please visit Reports Legal website.
More usually defendant organisations will enter a guilty plea while seeking to mitigate their position by persuading the investigating authority and ultimately the Court to a favourable view of its culpability (and the likelihood of harm) notwithstanding the failings of an employee. This poses a number of difficulties.
In British Steel, a case in which the prosecution did not dispute that British Steel’s supervisor was appropriately qualified or that British Steel were entitled to rely on him, and where there was expert evidence that British Steel could not have done more as a company, the sentencing judge viewed the breach as a technical one and fined British Steel a nominal £100 (it was 1995).
This, as it happens, was precisely the view of the Committee on Health and Safety at Work, chaired by Lord Alfred Robens, whose recommendations were implemented in the HSWA. The Committee expressly recommended that organisations in British Steel’s position should not be prosecuted: ‘The fact is – and we believe this to be widely recognised – that the traditional concepts of the criminal law are not readily applicable to the majority of infringements which arise under this type of legislation. Relatively few offences are clear-cut, few arise from reckless indifference to the possibility of causing injury, few can be laid without qualification at the door of a particular individual. The typical infringement or combination of infringements arises rather through carelessness, oversight, lack of knowledge or means, inadequate supervision or sheer inefficiency. In such circumstances the process of prosecution and punishment by the criminal courts is largely an irrelevancy. The real need is for a constructive means of ensuring that practical improvements are made and preventative measures adopted. Whatever the value of the threat of prosecution, the actual process of prosecution makes little direct contribution towards this end…We recommend that criminal proceedings should, as a matter of policy, be instituted only for infringements of a type where the imposition of exemplary punishment would be generally expected and supported by the public. We mean by this offences of a flagrant, wilful or reckless nature which either have or could have resulted in serious injury…’.
The Court of Appeal, however, disagreed. Not only were they of the view that exemplary punishments of organisations for inadvertent failings by workers contributed greatly to improving safety in the workplace, they also expressed the view that such failings should be treated as highly culpable failings by the company: ‘It was a highly dangerous operation. A man was killed. Mr. Crabb [the supervisor] was negligent. In these circumstances the fine of £100 was derisory. In our view a substantial fine was required but, unfortunately, it is beyond our power to increase the fine.’
The Court of Appeal’s view won out over time. It is now commonly the case that if, for example, an employee (in breach of company policy) instructed or did not prevent another worker from doing something dangerous and that other worker was injured or killed, judges will conclude that it was the company which so instructed or which failed to prevent the dangerous activity and (absent persuasive reasons not to) judging the company’s culpability accordingly.
*This article was first published by Reports Legal on 06 June 2022. If you wish to read the full article, please visit Reports Legal website.