Forcing employees to Work could be Corporate Manslaughter | John Murphy
Imagine there was a lion loose in your workplace. Do you think it would be legal for your employer to force you to come in anyway and risk being mauled to death?
Of course, it wouldn’t. They would face criminal charges for putting your life at risk. But the law makes no specific mention of lions so how does the law make sure that all eventualities are covered, even ones unforeseen by people at the time?
The Corporate Manslaughter and Corporate Homicide Act (2007) states that an organisation has committed an offence if they cause persons death by a gross breach of their duty of care.
It defines a gross breach as something that “falls far below what can reasonably be expected of the organisation in the circumstances.”
If requiring you to come into work with a lion on the loose amounts to a gross breach in their duty of care then so does forcing you to come into work with a fatal invisible plague on the loose.
Organisations large and small need to realise that the regular Health and Safety laws still applies in these circumstances. And the law clearly states that the measures you have to take vary depending on the circumstances.
Ordering your employees to come into work would not be considered a breach of your duties under normal circumstances. But daily government press conferences, direct text messages and wall to wall news coverage have made it clear that these are not normal circumstances.
The government has gone above and beyond to make it easy for companies to furlough employees, that is send them home to isolate. The government will then pick up 80% of the employees pay bill. That shows how seriously Public Health Officials take the risk to people’s health. Risk of insolvency is also not an excuse for such a grievous breaking of Safety law. If your factory burnt down, you could not require employees to work in a collapsing burnt out building just to salvage your business.
A decision for employees to come in or not can only be made by Directors at the top of an organisation and that is who the Corporate Manslaughter Law was designed to target. There is no passing the buck downwards in this situation so that will put Directors in the dock.
Many companies are clearly under the impression that following government advice protects them from the law. It doesn’t. The government advice on non-essential workers going into work has been hazy at best. On Monday the Housing Secretary tweeted out that Construction workers should “work from home if possible” and if not possible should keep 2m apart on construction sites. This is ludicrous suggestion and shows the governments muddled thinking on this issue. Judges and juries will take into account government advice when judging companies like Next or construction companies but they will also take into account the massive compensation scheme offered to them.
Another law that still applies is the Health and Safety at Work Act (1974). This can also result in imprisonment or an unlimited fine on the company in question.
The core section of the law is as follows:
“It shall be the duty of every employer to ensure, so far as reasonably practicable, the health and safety of all his employees.”
In these circumstances it is reasonably practicable to send employees home.
Health and Safety Law in the UK relies on companies knowing the law and sticking to it. We don’t send round armies of Health and Safety inspectors to every cornershop to check if they are following the law. We’re not France. But what the Health and Safety Executive does do is prosecute companies for breaches of the law, especially when they believe that one has lead to a death.
The HSE (Health and Safety Executive) is currently in dereliction its duties by not shouting from the rooftops that companies are ordering people to come into work to die.
The advice on the HSE website regarding Coronavirus is unbelievable. It has one article about how drivers need to be offered use of the facilities when they make deliveries. So instead of protecting the driver and workers from death by Coronavirus when they make a stop they are insistent that companies must protect drivers from the scary terror of having to take a piss by the side of the road.
Another piece of advice whittles on about how employees self isolating at home have to have chairs that protect their backs and screens that don’t strain their eyes. “This includes doing home workstation assessments.” The HSE is actually encouraging companies to send people who may be infected with Coronavirus round to employees houses just to make sure they don’t get eye strain!
However, just because the HSE is behaving negligently right now does not protect companies from the law. HSE advice does not have the force of law. It can only bring prosecutions and judges will enforce the law. You can bet that when this is over the current Chair and Chief Executive of the HSE will quietly step down to a golden goodbye and their replacements will spend the next ten years vigourously bringing prosecutions against the thousands of companies that are currently breaking the law.
Corporations may think that they can get away with this because it will not be possible to prove that the deceased caught Coronavirus at work. Firstly, an accident or death does not have to have occurred for prosecution under the Health and Safety at Work Act. Secondly, it may well be possible to prove beyond reasonable doubt that they received the infection at work. If the deceased lived with a partner who is working from home and came home every night and stayed there the partner will testify that their loved one could only have picked up the infection at work.
Corporations are especially at risk of prosecution when it comes to requiring at risk workers to come in to work. The governments definition of at risk is anyone over 70, pregnant or with an underlying health condition. There is evidence that long term smokers and obese people are also at high risk.
We don’t even have to wait for the HSE of government to act. Individuals can bring private civil proceedings against their employer. Expect the lawyer robo calls to change from “Have you been injured in an accident in the last three years?” To “Have you or a member of your family been left with disabilities from Coronavirus due to your employer requiring you to work?”
When it comes to companies and public bodies doing essential work they have a public interest defence. Nobody can doubt that sending home our brave medics, armed forces and police would cause more deaths than it would save. There is also an element of risk that these public servants know they are taking on, there is no way for them to do their job without it.
When it comes to supermarkets the Health and Safety Executive is very unlikely to believe it’s in the public interest to prosecute their Directors as we need them feed the nation. There are still actions they should take to protect their staff though. They should send all at risk workers home without exception. Tesco are already doing this and should be applauded for doing so.
They should also demand full PPE from the government for all their workers in store. A cashier is as at risk as a Nurse due to the number of people that they are coming into contact with. Checkout alleys are narrow and they are rarely less than a metre from a customer and are required to talk to them (talking spreads the disease.) They need full PPE to protect themselves and they need it now.
Look, I could be wrong, it could be the case that company directors will be found innocent of all charges related to Corporate Manslaughter during this epidemic. Maybe the HSE will decline to prosectute companies due to embarrassment over their shoddy advice. Maybe civil cases against companies will all fail. Maybe the epidemic will be suppressed in the next month and so few companies will have employees die that it won’t matter. But if I was a selfish money grubbing Company Director would I take the risk of huge fines and jail time instead of taking the 80% refund in employee wages, government loans and tax breaks? Hell no. Even a selfish bastard would be crazy to be send their employees to work and risk jail.
I’m glad that as a country we are finally taking this epidemic seriously. I wish we had done what I desperately pushed for and closed the borders to China in January and Italy and the rest of the world in February then maybe we could have prevented all this. However, there is still a lot we can do. You can help protect a family member or friend who is being forced to go to work by sharing this article.
John Murphy is qualified with the Institution of Occupational Safety and Health.
Photo by Jon-Michael St. Amant on Flickr.