A recent court ruling which fined British organisation The Produce Company £30,000 when an employee died after 11 days of excessively long shifts raises the legal issue of an employer’s duty of care. Whether an isolated event or a precedent for future corporate manslaughter cases, it suggests a company’s responsibility to its staff doesn’t stop when employees leave work. This could have significant cost and policy implications. Sarah Fletcher asks if extensions to a company’s responsibility for employee safety are an expensive and inappropriate demand upon employers.

Safety: whose responsibility?

The Health and Safety at Work Act 1974 requires the organisation to take “reasonably practicable” measures to protect employees’ safety at work. Once a company has trained staff to minimise the possibility of accidents, has the employer done its duty? According to Dr Janet Asherson, Head of Health and Safety, CBI, an organisation should provide relevant training, but this responsibility must have its limits: “the employer can only take [its duty of care] so far”. Ultimately, outside of work, the employee must be accountable for their own welfare: “Responsibility falls first and foremost on the individual – they should know when they’re tired.” In the case of road safety, if long working hours could make driving home dangerous, the employee, not the company, should find a safe alternative: “People have no right driving cars if they’re tired or otherwise ineffective”, she adds.

Traditionally, UK organisations have steered clear of intruding into workers’ personal lives, says Asherson. However, where a role is safety-critical the employer has a responsibility to intervene and put certain restrictions in place. It would be reasonable to expect a pilot or surgeon to abstain from drinking alcohol between shifts because its effects could linger into working hours. Mary Boughton MBE, Chair of the Federation of Small Businesses (FSB) Health, Safety and Risk Management Committee, adds: “Certainly there are some areas where the employer should be aware. For example, if the employee is working in a nightclub then using machinery during the day.” Leo Martin, Director of The Good Corporation, an organisation which promotes responsible business practices, says this makes a good general principal; the employer should be liable “if there’s an obvious causal link”.

Being involved with employees’ lives outside of work carries costs. Asherson claims increased employer liability would have consequences for personal freedom: “If in legal terms duty of care extends beyond working time, the employer also has authority to dictate what’s happening – do employees want that?” She adds: “The extent of total control and authority over people’s non-work life would not be in the best interest of employers and employees.” Martin says this should not be an issue if health and safety directives are being met: “The employer’s responsibility is clearly to provide a healthy and safe environment in work – if they do that it won’t affect safety outside of work.”

Is more legislation the answer?

Nick Goulding, Chief Executive of the Forum of Private Businesses (FPB), says extra corporate manslaughter legislation “passes the blame onto small businesses” because they cannot cope with the volume and complexity of legislation: “We are better off having law that is governed by general principles than we are having detailed regulations … It is much more difficult for the small employer when you put lots and lots of detail in place because it’s hard to get to grips with.” He adds: “I think the government being more specific is the worst danger” as “the chances of the employer being able to understand all that is virtually zero.”

Boughton says corporate manslaughter laws are a greater problem for small businesses than larger organisations. “The burden of health and safety is pretty high already” as smaller enterprises don’t have an HR department or safety experts to deal with corporate manslaughter issues. This could damage the growth of small businesses: “From a small business perspective, it’s going to worry people a great deal and think harder about taking on employees … [Many] can’t cope with all the legalities that employment entails – it’s going to put people off employing.” She adds: “The rules were brought in to deal with bigger corporations, but it’s taking in a whole area of small business.” British Chambers of Commerce (BCC) Policy Advisor, Kieran O’Keeffe, expresses concern over “an increase in legal claims which small and medium enterprises are not set up to deal with.”

What’s the solution?

“The solution is not an avalanche of rules,” says Goulding. “We should rely on people using their common sense … Employers should step up to the mark and meet their responsibilities without lots of detailed rules.” Added government legislation would not be entirely effective as each organisation will have different requirements according to its methods of working. As companies have different policy requirements, “these detailed rules will almost certainly be wrong in certain circumstances”. Asherson agrees with this principle, as too much legislation inhibits the freedom of both employer and worker: “It should change from company to company and from business to business, not be a universal guideline … Otherwise you have a nanny state.” Asherson warns that if this case sets a precedent for corporate manslaughter legislation, the results will not be entirely positive: “If it is the will of government in the courts to push employer responsibility hard into the private lives of people there’s a price to be paid.”

The case against The Produce Company may not cause problems for businesses. Martin says responsible employers have nothing to worry about: “It should not affect company policy one jot; if the company’s doing that anyway, it should not affect you.” HR Director Peter Cox thinks it unlikely that employer liability will extend to responsibility for staff outside of work hours: “If this case sets a precedent over the application of Corporate Manslaughter, then this is a surprise.” However, it could have implications for organisations’ corporate manslaughter policies if the law is unclear on employers’ duty of care: “I would like to see a better definition of the application of the law. It worries me what other interpretations of this there may be in the future on other areas.”