Enterprise and Regulatory Reform Bill

Debate between Baroness Whitaker and Baroness Brinton

Monday 14th January 2013 Grand Committee

[Baroness Brinton]

My Lords, there is a balance in these cases. I accept the points that the noble Baroness, Lady Turner of Camden, has made, but an issue has concerned me for some time about there being no defence for breach of duty for organisations that have done their absolute utmost to prevent an accident.

Let me give the Committee an illustration. An organisation with catering facilities for conferences has an extremely good record in public hygiene, effective written policies for staff at all levels and good training in management oversight of practices in its kitchens. A casual chef was employed from an agency. The chef was briefed that he was not to use raw egg in a mousse. He was given a written recipe to follow as well as the policy about why raw egg should not be used in such recipes. He disobeyed the order and, as a result, a conference delegate became seriously ill and had a miscarriage. That is a dreadful outcome from a single thoughtless incident by someone who was not even an employee but an agency worker not following instructions.

The lack of defence for the breach of duty legislation meant that the organisation itself was sued both civilly and criminally, but so were the people who had put in place the policies and monitoring, even though they had explicitly told this particular individual not to follow that course. As a result, individuals further up the organisation were extremely concerned that there was nothing further they could have done. Everything that the managing director, for example, had asked to happen had been carried out by those working beneath him. The organisation was rightly fined and compensation was rightly paid. However, the point is that there has to be some defence for breach of duty.

[Baroness Whitaker]

I apologise for interrupting so early in the noble Baroness’s speech, but it is important to say first of all that almost all provisions in the Health and Safety at Work etc. Act include the little phrase,

“so far as is reasonably practicable”.

Some have strict liability but there are very few. I hope that the noble Baroness will accept that, on the whole, lack of prior knowledge and lack of control does not mean that you will be judged to have committed a criminal act.

[Baroness Brinton]

I am grateful for the intervention by the noble Baroness, Lady Whitaker. Unfortunately, that was not true in this case. Only at the last minute were the managing director and someone else removed from the criminal action, which was helpful, but it was only after months of papers going between the Health and Safety Executive and others.

The point that I am trying to make is the one that I started with: there is a balance. I accept the undertaking that employees need to be protected, but there are occasions when there should be a defence for a breach of duty. I believe that new subsection (2D) in Clause 61 attempts to do that. The concerns that the Baroness has raised should be looked at and I hope that there will be some scope for the Minister to address them. But I would not want the record to show that concern was only one-sided. Certainly, some organisations do their utmost to make sure of something and they appear still to fall foul of legislation.