Counting the cost of health & safety

Owners and senior managers should know the importance of taking health and safety seriously, both for themselves and for their business. So how many appreciate and take seriously the risks of personal liability under health and safety law?

When the Corporate Manslaughter Act 2007 came into force in April 2008 it was deemed a necessary and powerful change in health and safety law. However, about a year earlier the Court of Appeal had significantly widened the remit of section 37 of the Health and Safety at Work etc Act 1974, a change that received little publicity but which has arguably had as much impact (if not more) than the Corporate Manslaughter Act.

Section 37 is broken when a breach of health and safety law by an organisation is said to have been committed with the 'consent, connivance or neglect' of a director, senior manager or anyone holding themselves out to be of such a position at the organisation.

In the case of R v P, the Court of Appeal stated that if such an individual did not have actual knowledge of a breach in health and safety, the correct question to ask in terms of establishing 'neglect' for section 37 was whether that person, by virtue of their position and the circumstances of their business, should have taken the initiative, anticipated a potential breach in health and safety law, and checked whether the relevant safety procedures were in place. 

Enforcement costs

Businesses shouldn't forget that from October 2012 the HSE will be able to recover their investigation costs every time they issue enforcement action (even as minor as letters of advice) after detecting 'material' breaches in health and safety law.

There have previously been calls for a specific health and safety 'directors' duty' to be created akin to that in place in other European countries; individuals elsewhere are nominated as responsible for health and safety and even, in some cases, become the business for the purposes of health and safety prosecutions.

Alternatively, some advocated the Irish approach where as soon as an organisation could be seen to have committed a breach in health and safety law, a rebuttable presumption arises that it was committed with the 'consent, connivance or neglect' of one or more of its' directors or managers.

However, due to the rise in section 37 prosecutions in the last five years in the UK, the threat of imprisonment under section 37 and the specific information often provided by the police to the HSE such a provision, or a statutory duty, seems unnecessary.

In recent times section 37 has been used against 'middle managers' holding themselves out to be senior managers, and senior managers who have, with good intentions, got involved in shop floor level health and safety issues. While not all recent section 37 prosecutions have related to a fatal incident, when serious incidents do occur the courts have the powers and the confidence to punish directors.

Ensuring compliance

There have been no formal changes to HSE guidance on prosecuting individuals that has prompted its recent targeting of individuals. Guidance from the Institute of Directors and the HSE, Leading Health and Safety at Work, is still in place and must be read by all directors and senior managers to ensure that they set the tone for health and safety compliance in their organisations.

However, the most important thing that all directors and senior managers can do is to try and ensure that health and safety is taken seriously at all levels, and that health and safety issues and risks are able to be reported to the very highest level of the organisation if necessary.

Directors and senior managers need to know what they are currently responsible for, what they ought to be responsible for, and what they know and ought to know about health and safety within their organisation.

Ultimately, if they do not know the detail (or cannot know it because of the size of the organisation), they must satisfy themselves that people with authority know the detail and have the power to change or challenge policies, making financial investments if required.

And finally, consider the comment from Sir Stelios Haji-loannou, the former boss of Easyjet: "If you think safety is expensive... try an accident."

Andrew Bennett is a solicitor in Eversheds' National Health and Safety and Environment Team

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