Director’s Liability for Health and Safety

Health and Safety for Directors – an Introduction

Never before have directors had to be so careful when it comes to ensuring health and safety of their employees. Whilst issue such as health and safety at work are not new, the concept of personal liability is relatively new and there has now been a wave of interest from those in positions of responsibility within organisations.

Many of these new requirements are mirror images of existing provisions with one of the main new changes being that of the passing of the Corporate Manslaughter and Corporate Homicide Act 2007 which came into force in April 2008. This not only potentially impacts on directors but also anyone responsible for controlling work such as managers and even foremen. Training is essential therefore for people at all levels of management to deal with the issues arising from the recent shift in emphasis. These provisions make health and safety within the workplace potentially relevant from a criminal point of view as well as civil point of view, further increasing the stakes for those involved.

The Current Legal Situation

The basic provisions are contained in the Health and Safety at Work Act 1974 and these lay out the requirements that are put on employers in the workplace. Over the years there have been numerous additions to this act but ultimately it has remained the critical element of any health and safety obligation for employers.

Example requirements include the need to ensure that risks are assessed regularly and that measures are put in place to mitigate any risks that may arise. Where there are more than five employees the requirements are slightly greater with written policies having to be put in place and disseminated to the relevant individuals. These have to be reviewed regularly and will need to take into account factors such as the industry and experience levels of the employees involved. 

Manslaughter Concerns

One of the most dramatic recent changes which have taken directors and managers by surprise has been that of the possibility of being guilty of corporate manslaughter. Again this is not a new concept and it has been possible for a director to find themselves facing such an accusation long before the 2007 Act came into force.

Critically the 2007 Act recognised that the standard offence of manslaughter did not fall neatly into the way that organisations worked and as such it became necessary to recognise different dynamics of the relationships in the workplace. In doing this it was stated that the managers or those with direct control would potentially be responsible for any deaths that occurred due to their action (or indeed inaction).

The test is that there had been a gross breach of duty of care that had ultimately caused the death of an employee by an individual in a ‘controlling mind’. Typically this will mean someone in a senior management role which in many cases will be the directors. These are criminal sanctions punishable in the same way as manslaughter outside of the workplace.

Policy Changes

As a result of this latest focus on health and safety issues it has become important for directors and senior management to look at ways in which they can potentially protect themselves. Scheduling in regular reviews of the policies and ensuring that all documentation relating to these reviews is kept accurately will assist in showing that efforts have been made to comply with their duties.

Controls are also important as it is often the case that those implementing the health and safety plans are not those directly using the plans or supervising them. For this reason a set of internal controls should be put in place to ensure that the processes are being followed even when those potentially liable are not directly involved in the overseeing of activities.

Other Health and Safety Issues for Directors

Sanctions

Where the Health and Safety inspectors have visited a company or been put on notice of a breach it is likely that an improvement order will be issued and the company required to make the changes dictated. If these are not followed there may be further financial penalties issued and any resulting deaths are likely to be viewed in a stricter way than had no remedial orders been made.

Critically the man sanction is an unlimited fine which can be levied on the company as well as on the individual directors. In certain circumstances directors could find themselves facing imprisonment. As well as the legal sanctions the publicity and PR can be very damaging particularly for the larger, more established companies that portray themselves as being careful employers.

Further Developments

It is expected that the area of health and safety is going to get more complicated as time progresses. More individuals are becoming aware of their own potential liability and are taking steps towards ensuring that health and safety are on the agenda at all times.

In years to come it is also expected that there will be more specific industry guidance coming out that will ensure that specific industries become more regulated whilst others do not.

Practical Tips

  • Directors need to make sure that they fully understand their own personal liability.
  • Those in a managerial capacity need to be determined and made aware of their responsibilities.
  • Health and Safety policies need to be put in place with regular checks and updates scheduled.