CHAPTER 3

Using Health and Safety Legislation for Corporate Killing

An alternative or an additional course of action, where there has been fatality caused by corporate act or omission, is to use health and safety legislation. Although there are overlaps between corporate manslaughter and health and safety offences resulting in death, the offences are different and prosecution for health and safety violations, even those resulting in death, are often not treated as matter of criminal law per se¹and may not satisfy public demand that individual organizations be prosecuted and convicted of corporate homicide offences.

The Health and Safety at Work etc. Act 1974 (HSWA) is the primary piece of legislation covering occupational health and safety in the United Kingdom. In the United States at federal level, the current primary piece of legislation governing the regulation of health and safety in the workplace is the Occupational Safety and Health Act 1970 (OSH).²

Health and Safety at Work etc. Act 1974

HSWA was passed to secure the health, safety, and welfare of employees at work and to protect the public from harmful activities of a company’s business.³ The Act set up a national independent regulator for health and safety in the workplace, the Health and Safety Executive (HSE).⁴ HSE has multiple functions and duties relating to health and safety in the workplace which include carrying out inspections, reviewing regulations, producing research and statistics, and enforcing the law.⁵

HSWA sets the framework for health and safety regulations in the workplace and is supported by detailed regulations made under it, and non-statutory codes of practice. Some regulations apply across all organizations and other regulations apply to hazards unique to specific industries, such as nuclear or construction.⁶

A core set of regulations known as the “six pack” came into force in 1992⁷ (and have since been amended), in order that the United Kingdom could comply with various European directives. These regulations clarify what an employer must do to comply with the requirements of HSWA.

The current regulations are:

• Management of Health and Safety at Work Regulations 1999⁸
• Workplace (Health, Safety and Welfare) Regulations 1992⁹
• Health and Safety (Display Screen Equipment) Regulations 1992¹⁰
• Personal Protective Equipment at Work Regulations 1992¹¹
• Manual Handling Operations Regulations 1992¹²
• Provision and Use of Work Equipment Regulations 1998¹³

Most of these regulations are supported by approved codes of practice, produced, or approved by HSE. Employers and others do not have to follow the codes of practice but if prosecuted for breach of any regulations, they will need to prove that their alternative arrangements have the same or better standards of health and safety. The focus of regulatory supervision is risk-assessment-based legislation. The Management of Health and Safety at Work Regulations places a legal duty on employers to carry out a risk assessment and set their own goals in reducing risk. The aim is to reduce the probability of an accident and if an accident does occur, the harmful consequences of it. Other regulations are specifically aimed to prevent death and serious injury.¹⁴ It is a criminal offense to breach a regulation.

Who Is Covered by HSWA?

The HSWA places general duties and responsibilities on all people at work, including employers, designers, manufacturers, importers and suppliers of goods, occupiers of premises employees, and the self-employed. Liability also extends to members of the public who interfere with safety devices, such as fire escapes.¹⁵

Duties Under HSWA

HSWA section 2(1) places a duty on every employer to “ensure, so far as reasonable practical, the health, safety and welfare at work of all his employees.” The definition of employee includes trainees and persons on work experience placements.

The general duty in section 2(1) is split into more particular duties under section 2(2) which include:

• The provision and maintenance of plant and systems of work¹⁶
• The use, handling, storage, and transport of articles and substances¹⁷
• The provision of information, instruction, training, and supervision to ensure the health and safety of employees at work¹⁸
• The maintenance of any workplace, under the employer’s control, in a healthy and safe condition, including any means of access and exit¹⁹
• The provision and maintenance of a safe and healthy working environment with adequate facilities and arrangements for the welfare of employees at work.²⁰

In addition to the duty of the employer to his employees, Section 3 imposes duties on employers to persons who are not their employees²¹:

“It shall be the duty of every employer to conduct his undertaking in such a way to ensure, so far as reasonable practical, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health and safety.”²²

An “undertaking” means “enterprise” or “business” and an employer/self-employed person retains responsibility for his business even if he subcontracts it and must take reasonably practicable steps to ensure that a contractor does not expose non-employees to risk.²³ Although liability for a contractor may be excluded where an employer could not have been expected to supervise their activity because the employer did not have the required specialist knowledge.²⁴ “Persons not in his employment” ranges from persons working alongside employees, such as independent contractors, to visitors and members of the public.²⁵

Self-employed persons have the same duties as employers toward other persons²⁶ and are also required to protect themselves from risks to their own health and safety if they conduct certain prescribed work.²⁷ Activities undertaken by the self-employed which are not listed in the Schedule²⁸ and which do not pose a risk to the health and safety of others are therefore exempted from the scope of HSWA 1974.²⁹

HSWA Section 4 imposes a duty on controllers of non-domestic premises to ensure premises are as far as reasonably practicable, safe, and without risks to health. The duty is to persons who are not their employees but who use the premises as a place of work, or use plant and equipment, provided there. Section 6 imposes a duty on a wide range of persons, including designers, manufacturers, importers, and suppliers, in relation to articles or substances provided for use at work. The duty is to ensure that such articles supplied are safe and without risk to health.

HSWA also imposes key liabilities on employees on a personal basis. Section 7 states that an employee is liable for failure to take reasonable care for the safety of others (or himself) and s37 provides that an individual (a director, manager, secretary, or other similar officer) can share criminal liability with the company where the offence has occurred as a result of their consent, connivance, or neglect. Prosecution under Section 7 can be taken against employees at any level in an organization, from the most senior to the most junior employee. Liability under s37 does not require active participation in the commission of the offence and “neglect” can covers situations where a director should reasonable be expected to be aware that the activities were unsafe.

Prosecutions Under the Health & Safety at Work Act etc. 1974

Breaches of health and safety legislation provide for both corporate and individual criminal liability. The offences relate to the absence of safety, or a risk to the health and safety of others, and do not require proof of any particular injury. The same offences may be relevant for both fatal and non-fatal injuries. The prosecution have to prove the absence of safety or a risk to health and safety but does not have to show how the accident happened or state what precautions should have been in place.³⁰ The burden of proof is on the employer to show that it was not reasonably practicable to do more than was done to comply with the duty.

In 2015/16, 144 workers were killed in the work place. This represents 0.46 per 100,000 full-time equivalent workers.³¹

HSE (or another relevant enforcing authority) investigates and, where appropriate, prosecute breaches of health and safety law. If, during the course of their investigation, evidence is found suggesting corporate manslaughter, the case is passed to the police to investigate.³³ Where there is a charge of corporate manslaughter, there may also be a charge against the same defendant, in the same proceedings, for a health and safety offence, arising out of some or all of those circumstances. The majority of cases following a fatality involved breaches by employers of section 2 or 3 HSWA.³⁴

Chart 3.1 U.K. fatalities of workers in the workplace 2008–2016.³²

Occupational Safety and Health Act 1970

OSH aims to ensure worker and workplace safety and health by imposing comprehensive duties on employers and severe penalties in the event of a breach. OSH created the Occupational Safety and Health Administration³⁵ (OSHA), which has similar enforcement functions as the HSE. OSHA sets and enforces protective workplace safety and health standards, carries out inspections and provides information, education, training, and assistance to employers and workers. OSH also set up the National Institute for Occupational Safety and Health (NIOSH)³⁶ as a research agency on safety and health in workplaces.

OSH permits individual states to set up their own safety and health standards and enforcement, provided the plans are “at least as effective in providing safe and healthful employment and places of employment as the standards promulgated” under OSHA.³⁷ To date, 26 states and 2 U.S. territories operate state plans.³⁸ The majority of state plans adopt federal standards verbatim although some states, such as California, have chosen to adopt stricter standards.³⁹

Who Is Covered by OSH?

Most private sector employers and their employees in the 50 states, the District of Columbia, Puerto Rico, and other U.S. territories are covered by OSH. Coverage is provided either directly by the Federal OSHA or by an OSHA-approved state plan. Federal agencies must have a safety and health program that meets the same standards as private employers.⁴⁰ Employees who work for state and local governments are not covered unless they work in states that have an OSHA-approved state plan.⁴¹ The Act does not cover, self-employed persons, farms which employ only immediate members of the farmer’s family and workplace hazards regulated by another federal agency (for example, the Mine Safety and Health Administration, the Department of Energy, or Coast Guard).⁴²

In 2015, 4836 workers in the United States were killed in the work place. This represents 3.4 per 100,000 full-time equivalent workers.⁴³

Chart 3.2 U.S. fatalities of workers in the workplace 2008–2015.⁴⁴

Duties Under the OSH

There is a general duty clause in OSH which requires employers to provide their employees with a place of employment that “is free from recognizable hazards that are causing or likely to cause death or serious harm to employees.”⁴⁵

This clause has been interpreted by the courts to mean that an employer has a legal obligation to provide a workplace free of conditions or activities that either the employer or industry recognizes as hazardous (this includes hazards that are obvious, and ones that the employer knew or should have known about, and hazards recognized within the relevant industry). The conditions or activities must cause, or be likely to cause, death or serious physical harm to employees and there must be a feasible method of correcting the hazard.⁴⁶

In addition, OSH provides that each employer “shall comply with occupational safety and health standards promulgated under this Act.”⁴⁷ OSHA standards are rules that describe the methods that employers must use to protect their employees from hazards. These standards also limit the amount of hazardous chemicals, substances, or noise that workers can be exposed to and require the use of certain safe work practices and equipment.⁴⁸

OSHA sets four groups of standards designed to protect workers from a wide range of hazards:

• General industry (which applies to the largest group of workers and worksites)
• Construction
• Maritime
• Agriculture

The general duty clause can be used to regulate hazards where OSHA has not provided specific standards. Employees must also comply with all OSHA requirements that apply to their actions and conduct.⁴⁹

Prosecutions Under OSH

OSH states that criminal penalties may be imposed on any employer who willfully violates a safety standard, rule or order pursuant to OSH Act, where that violation causes the death of any employee.⁵⁰ Four elements must be proved by the prosecution in order to establish a criminal liability. These are:

• The defendant is an employer engaged in a business affecting commerce
• The employer violated a “standard, rule or order” promulgated pursuant to 29 U.S.C. 665, or any regulation prescribed under OSH
• The violation was willful
• The violation caused the death of an employee.

“Engaged in a business affecting commerce” is interpreted broadly⁵¹ and includes employers who are not engaged in interstate business. “Employer” also includes an individual who is a corporate officer or a director.⁵² Although if not charged as principal, a corporate officer or director cannot be charged as aiding and abetting. “Willful” means if it is “done knowingly and purposely by an employer who, having a free will or choice, either intentionally disregards the standard or is plainly indifferent to its requirement. An omission or failure to act is willfully done if committed voluntarily and intentionally.”⁵³

The prosecution must prove beyond reasonable doubt that the conduct or omission, which amounts to the violation of the OSHA standard, was both the factual cause and the “legal cause” (i.e., the harm was a foreseeable and natural result of the conduct) of the injury resulting in the fatality. Where it can be shown that there has been intentional disregard or plain indifference to the requirements of the law, ignorance of an applicable standard is not a defense.⁵⁴

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¹P. Almond. 2013. Corporate Manslaughter and Regulatory Reform (Basingstoke Hampshire, Palgrave Macmillan) p.22.

²The Act was codified in 29 U.S.C. 651 (1970).

³HSWA 1974, s1.

⁴ The HSE is a non-departmental public body reporting to the Department for Work and Pensions. It is governed by a Board and the Senior Management Team. The Act originally also set up the Health and Safety Commission whose functions included proposing new laws and standards, conducting research and giving advice on health, safety and welfare in the workplace but this body was merged with the HSE in 2008. http://www.hse.gov.uk/aboutus/40/index.htm (accessed June 6 2017).

⁵ HSE may investigate and prosecute breaches of health and safety law but the HSE cannot investigate or prosecute corporate manslaughter or any other criminal offences outside its health and safety remit. http://www.hse.gov.uk/enforce/enforcementguide/wrdeaths/investigation.htm#P2_260 (accessed June 3 2017).

⁶ For example, the Construction (Design and Management) Regulations SI2005/51 is the main set of regulations for managing the health, safety and welfare of construction projects.

⁷These have been amended since their first introduction.

⁸SI 1999/3242.

⁹SI 1992/3994.

¹⁰SI 1992/2792.

¹¹SI 1992/2966.

¹²SI 1992/2793.

¹³SI 1998/2306.

¹⁴For example, the purpose of the Work at Height Regulations SI/2005/732 is to prevent death and injury caused by a fall from height.

¹⁵HSWA, 1994 s8.

¹⁶HSWA, 1994 s2 (2) (a).

¹⁷HSWA, 1994 s2 (2) (b).

¹⁸HSWA, 1994 s.2 (2) (c).

¹⁹HSWA, 1994 s.2 (2) (d).

²⁰HSWA, 1994 s.2 (2) (e).

²¹92 Members of the public were killed due to work related activities in 2016/17. www.hse.gov.uk/, (accessed June 28 2017).

²²HSWA, 1994 s3 (1).

²³R v. Associated Octel Co Ltd [1996] 1 WLR 1543.

²⁴Haseldine v. CA Daw& Son Ltd [1941] 2 KB 343. This reflects the civil law position where there is no tortious liability for faults of specialist contractors.

²⁵R v. Tangerine Confectionery Ltd and Veolia ES (UK) Ltd [2011] EWHC 1137.

²⁶HSWA, 1994 s3(2)

²⁷These include agriculture, work with asbestos, construction, gas, genetically modified organisms and railway industries.

²⁸The Health and Safety at Work etc. Act 1974 (General Duties of Self-Employed Persons) (Prescribed Undertakings) Regulations 2015.

²⁹The exemption was introduced by the Deregulation Act 2015.

³⁰R v. Chargot [2008] UKHL 73.

³¹www.hse.gov.uk/statistics/pdf/fatalinjuries.pdf, (accessed June 28 2017).

³²http://www.hse.gov.uk/statistics/, (accessed June 28 2017).

³³HSE. 2015. Enforcement Policy Statement. http://www.hse.gov.uk/enforce/enforcementguide/wrdeaths/investigation.htm, (accessed June 13 2017).

³⁴http://www.hse.gov.uk/prosecutions/case/case_list.asp?PN=2&ST=C&EO=%3D&SN=F&x=19&SF=FAT&SV=Yes&y=17&SO=DODS, (accessed June 28 2017).

³⁵OSHA is part of the United States Department of Labor. https://www.osha.gov/about.html, (accessed June 13 2017).

³⁶NIOSH is part of the U.S. federal government’s Centers for Disease Control and Prevention. For further information on NIOSH see their website at https://www.cdc.gov/niosh/about/default.html, (accessed June 26 2017.

³⁷ OSH 1970, s18.

³⁸Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, Wyoming, and Puerto Rico, have state OSHA approved plans that cover both private and state and local government workplaces. Connecticut, Illinois, Maine, New Jersey, New York, and Virgin Islands, have state OSHA approved-plans that cover public sector workers only. https://www.osha.gov/dcsp/osp/, (accessed May 21 2017).

³⁹http://safety.blr.com/workplace-safety-news/safety-administration/OSHA-Occupational-Safety-and-Health-Administration/Federal-vs.-state-OSHA-Do-you-understand-the-diffe/, (accessed June 22 2017).

⁴⁰https://www.osha.gov/workers/index.html, (accessed June 22 2017).

⁴¹Some states have plans that only cover public sector workers. See fn38 above.

⁴²Occupational Safety and Health Administration. 2016. Workers’ Rights, OSHA 3021-11R 2016 p.5.

⁴³https://www.osha.gov/oshstats/commonstats.html (accessed 3 June 2017).

⁴⁴https://www.osha.gov/oshstats/index.html, (accessed June 3 2017).

⁴⁵OSH s5(a)(1),

⁴⁶ https://www.osha.gov/SLTC/workplaceviolence/standards.html, (accessed June 22 2017).

⁴⁷OSH 1970, s5(a)(2).

⁴⁸Occupational Safety and Health Administration. 2016. Workers’ Rights, 3021-11R p.7 https://www.osha.gov/Publications/osha3021.pdf, (accessed June 22 2017).

⁴⁹OSH 1970, s5(b).

⁵⁰OSH 1970, s17.

⁵¹Usery v. Lacy (Aqua View Apartments), 628 F.2d 1226 (9th Cir. 1980).

⁵²United States v. Doig, 950 F.2d 411, 415 (7th Cir. 1991).

⁵³United States v. Dye Construction Co., 510 F.2d 78 (10th Cir. 1975).

⁵⁴Georgia Electric Co. v. Marshall, 595 F.2d 309 (5th Cir 1979).