Bruce Craig

Provisional data published by the Scottish Trades Union Congress (STUC) and campaigning charity Scottish Hazards revealed that 21 workers died as a result of industrial harm in the past 12 months, almost double the 2019 total of 11. Scottish Hazards said it believes the true number of workplace deaths is likely to be far higher when road traffic accidents connected to work, occupational disease and work-related suicides are taken into account.

The figures prompted calls for the Scottish Government to replace the 2007 Corporate Manslaughter and Corporate Homicide Act (CMCHA) with reformed legislation. The STUC said that more than 300 workers have died since the law was first introduced, but no prosecutions in Scotland under the Act have been recorded. STUC general secretary Roz Foyer said it was “galling” to see that the number of workers who have died at work in Scotland is on the rise again.

Employers have a duty to ensure the safety and health of their workers and others affected by their activities, insofar as reasonably practicable. The figures will be of concern and will undoubtedly inform the regulators as they carry out workplace inspections.

However, with health and safety reserved to the UK government, any attempt to reform the law would need to be by Westminster rather than Holyrood. Failure to comply with health and safety law can already lead to substantial fines and in extreme cases imprisonment.

The CMCHA was introduced in response to a number of large-scale disasters, including the Piper Alpha oil rig disaster and the Kings Cross station fire. It introduced a new means of establishing liability through the actions of senior management, in place of the need under common law to find the “directing mind” of the company to be “at fault”.

This concept, known as the “identification doctrine”, was widely believed to have hindered prosecutions because, in large modern companies, decision-making is complex and taken at various levels. This makes it extremely difficult to identify individuals of sufficient seniority whose actions were so reprehensible that they could be found to be the actions of the company.

Under the CMCHA, an organisation can be found liable where it causes the death of a person to whom it owed a duty of care, and that breach is sufficiently serious to be considered “gross”, but the test for gross remains an extremely high threshold to surmount, although it is defined more clearly by way of statutory guidance.

Senior management must play a substantial role in the gross breach which causes death - that is, a substantial element of any breach needs to be in the way those activities were managed or organised by senior management.

Bruce Craig is a partner at Pinsent Masons