Legal responsibilities of employers
Health and safety law states that organisations must:
- assess risks to employees, customers, partners and any other people who could be affected by their activities
- arrange for the effective planning, organisation, control, monitoring and review of preventive and protective measures
- have a written health and safety policy if they employ 5 or more people
- ensure they have access to competent health and safety advice
- consult employees about their risks at work and current preventive and protective measures
Failure to comply with these requirements can have serious consequences – for both organisations and individuals. Sanctions include fines, imprisonment and disqualification.
See also the advice on the Corporate Manslaughter and Corporate Homicide Act.
Liability of individual board members for health and safety failures
If a health and safety offence is committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the organisation, then that person (as well as the organisation) can be prosecuted under section 37 of the Health and Safety at Work etc Act 1974.
Case law has confirmed that directors cannot avoid a charge of neglect under section 37 by arranging their organisation's business so as to leave them ignorant of circumstances which would trigger their obligation to address health and safety breaches.
Those found guilty are liable for fines and imprisonment. In addition, the Company Directors Disqualification Act 1986, section 2(1), empowers the court to disqualify an individual convicted of an offence in connection with the management of a company. This includes health and safety offences. This power is exercised at the discretion of the court; it requires no additional investigation or evidence.
Individual directors are also potentially liable for other related offences, such as the common law offence of gross negligence manslaughter. Under the common law, gross negligence manslaughter is proved when individual officers of a company (directors or business owners) by their own grossly negligent behaviour cause death. This offence is punishable by an unlimited fine and a maximum of life imprisonment.
Liability of someone who assumes the role of health and safety director
Board members are collectively responsible for providing leadership and direction on health and safety. We suggest that a health and safety director's role will be to ensure that health and safety is not overlooked when board decisions are made.
If an individual director who has health and safety responsibilities neglects those responsibilities and, as a result, the organisation commits a health and safety offence, then the individual may also have committed an offence.
It is good practice and makes good business sense to have a board member with responsibility for health and safety. Some leading companies have made their chief executive responsible for health and safety. This sends out a clear signal that health and safety is an important aspect of the business.
However, the guidance on why leadership is important clearly states that board members are collectively responsible for providing leadership and direction on health and safety. The goal of effective management of occupational health and safety is more likely to be achieved where all board members have a proper understanding of the risks, the systems in place for managing the risks and an appreciation of the causes of any failures.
The role of elected, co-opted or non-executive board members in providing leadership and direction on health and safety
Elected, co-opted and non-executive board members need to help ensure their organisation gets the right direction and leadership on health and safety matters. They can also perform a scrutinising role – ensuring the integrity of processes to support boards facing significant health and safety risks.
Corporate Manslaughter and Corporate Homicide Act
Under the Corporate Manslaughter and Corporate Homicide Act an offence will be committed where failings by an organisation's senior management are a substantial element in any gross breach of the duty of care owed to the organisation's employees or members of the public, which results in death.
The maximum penalty is an unlimited fine and the court can additionally make a publicity order requiring the organisation to publish details of its conviction and fine.
In considering the liability of an organisation under the Act, a jury must consider any breaches of health and safety legislation and may have regard to any health and safety guidance. In addition to other health and safety guidance, this guidance could be a relevant consideration for a jury depending on the circumstances of the particular case.