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.

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