Killing an employee through neglect causes embarrassment. Even the most ruthless company would prefer to avoid it. Outsiders get called in. The inquest will be in the local media – possibly even the nationals, probably involving expensive bills for bought-in troubleshooting PR services. There is a small, but real, chance of prosecution and even the tiny, but chilling possibility of a corporate manslaughter charge.
But company executives can indulge in the crime of corporate grievous bodily harm with very little fear. Injuries that, if repeatedly carried out on the streets by a gang of hoodie yobs, would result in a prison sentence of up to five years can be safely inflicted on the office floor by gangs of yobs in suits.
The proposed Corporate Manslaughter Bill, re-presented yet again in the Queen’s Speech, though it may increase criminal accountability following deaths, does not begin to tackle the problem of criminal injury. Tony Blair could profitably start focusing on respect in the office, rather than the Bluewater mall.
David Bergman, director of the Centre for Corporate Accountability (CCA), says: “The way in which deaths are investigated has significantly improved over the past five years.
“[Yet] criminal accountability is extremely minimal. At the moment, out of every 100 major injuries to workers reported to the authorities, 10 per cent are investigated and only 10 per cent of those result in prosecution. What level of justice and deterrence is there? Serious injuries and disease resulting from reckless or grossly negligent conduct by companies or directors should be seen as serious crimes of violence and investigated, prosecuted and sentenced accordingly.”
To prove GBH against the yob on the street, it is necessary to show that he caused serious injury and had known at the time that his conduct might cause some harm. Directors who know that work practices are injuring people, but who let them carry on so that yet more workers are damaged, are operating on the same moral ground. Lower, because few can claim ignorance or poverty as a background. Much lower, because the hoodies may be beating up their victims with an eye to only a mobile or an iPod. Corporate criminals regularly steal something much more valuable – a man or a woman’s ability to earn a living.
But the yob in the suit is protected to a large extent by the nature of the place where the attacks are carried out. Like domestic violence, corporate GBH is done by the economically powerful. Employees are reluctant to challenge an organisation that puts bread on the table for them and their children. It can be hard to escape. And, as with domestic violence, it is normal for the corporate bully to blame the victim. Domestic violence is, at least, now taken seriously. Corporate violence is where domestic crime was 50 years ago.
The problem of injury at work is huge. Roughly 2.2 million people suffer from ill-health that they believe is work-related. Health and Safety Executive figures show that 30,666 major injuries – amputations, burns, loss of sight, fractures, anything requiring resuscitation – were reported in 2003-2004, an increase of 9 per cent on the previous year. Another 129,143 people suffered work-related injuries that forced them to stay off sick for more than three days. Though apparently less dramatic, this category includes conditions such as repetitive strain injury (RSI), which may result in a permanent inability to work. These figures cover only cases that are reported. In theory, companies have to report these kinds of work-related injuries to the HSE or to their local authority. In practice, there is little to force them to do so. Prosecutions for simply failing to report are very rare. When they do come to court, usually wrapped in with charges of injury, they may attract a fine of £500 – less than the spend on many a corporate Christmas dinner.
Not all these injuries, needless to say, are due to a wilful negligence. Some are genuine accidents. In some, the employee is at fault. What proportion involve gross negligence or recklessness to a criminal degree by employers is unknown – but research shows that 70 per cent of all deaths are due to management failure. The level of official interest in major injuries can be politely described as patchy. Some local authorities investigate every one reported – some, only 10 per cent. One CCA/Unison study noted grimly of the HSE: “Our analysis shows that, in 2000-2001 the amputations of three arms, seven hands, two legs, one ear and 410 fingers were not investigated.” So-called “three-day” injuries are rarely investigated.
Mick Balfour, head of health and environment at the GMB trade union, points out that it is not all about people having limbs lopped off – injuries which, though dreadful, are at least very tangible. “More common is people with health issues like RSI, which can have terrible effects that aren’t so obvious. One of the things we’re particularly worried by is that employers can be aware that people are being injured by failures in their procedures, but even when our reps draw failings to their attention, employers don’t have a legal obligation to respond. The HSE has stopped short of making it a legal obligation on employers to investigate accidents. How can you be sure it won’t be repeated if you don’t investigate it? It’s beyond comprehension.”
In theory, there is recourse to the civil courts through a personal injury case. In practice, this is harder than anyone who reads the daily references to “compensation culture” would believe. Suppose you tripped over a pile of rubbish at work and suffered a complex fracture. Would colleagues give a witness statement for you against the company paying their mortgage? Or would they be more likely to say they did not see the accident, and had never noticed the rubbish? There is no public money available to support a personal injury action. If an employee is not in a union, the main recourse is to a no-win, no-fee lawyer, who is likely to be looking for clear cases with a high chance of success. Employees with pre-existing injuries that have been made much worse by the company’s negligence may find that they are in no man’s land. Even for those who can bring a case, the stress is high.
“The idea that the compensation culture exists is rubbish,” says Martin Bare, a personal injury lawyer with Morrish & Co and a member of the executive of the Association of Personal Injury Lawyers. “Less than a quarter of victims of workplace injury make a claim. And at the end of it, for those who are successful, damages for personal injury are not a Lottery win. There is no windfall.”
Corporate criminals are shielded from the public gaze. Successful prosecutions are public knowledge, but they are few. The Health and Safety Executive lists firms against which it has made orders on its website, but it covers a limited number of industries. Are you an office worker changing jobs, wanting to check a new employer’s safety record? To see if any enforcement notices have been made, you will probably have to make an appointment to look at the local authority’s list. To see details of the orders, or discover the number of injuries recently reported by a firm, you will most likely have to make a request under the Freedom of Information Act. It may be refused. Workers who win personal injury settlements from employers will normally sign a gagging clause.
Taxpayers have little access to information they need, yet they pick up most of the bill for the cost of the crime. True, an employer has to pay some sick pay and, probably, the cost of a replacement worker. But the NHS or a private insurer will cover medical treatment. Early retirement because of a permanent disability will be carried by the company pension scheme – that is, by other workers – and through benefits from the state. Any compensation will be paid by the company’s insurer. The biggest cost, the personal one, will be carried by the injured worker.
Elsewhere, there are encouraging signs that corporate GBH is becoming recognised. In Canada the Westray Act, passed in 2003, has made it easier to prosecute companies and public bodies when serious negligence has resulted in serious injuries, not just death. In the Australian Capital Territory a new act has imposed what does not exist in Britain: a legal duty on senior officers in a company to avoid or prevent danger to the safety or health of workers. An expert committee set up by the Scottish Executive is also considering whether a new offence of corporate assault is warranted.
In Britain meanwhile, as Rory O’Neill, editor of Hazards magazine says: “The workplace remains the only place where you can still fill someone’s bloodstream with lead or arsenic and escape jail; where you can gas someone – and go home for tea.”
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