Health & Safety Obligations of Directors and Senior Managers

Whether or not your business is run through a company, that business will have legal obligations with regard to Health & Safety and environmental issues.

For the purposes of this article, I will talk largely about companies because the ways that responsibility (and any failures) play out are quite particular in relation to companies, and there is a very specific issue with companies about when the company and/or its directors or managers are going to have to bear the weight of that responsibility or punishment.

Companies can’t do things by themselves, so it’s the Directors and Senior Managers of each company who have the responsibility to ensure it complies with those legal obligations.

In some circumstances, your legal obligations go beyond simply running the company to ensure it complies and can put you – as the Director or Senior Manager – at risk of personal liability. You have to both:

• Ensure the company does what’s required of it AND
• Ensure you do what’s required of you (personally)

For more information, please read this article and the next one.

Sanctions

If a company fails to comply with its health and safety obligations, the liabilities might be civil and/or criminal.

Under Health & Safety legislation, there have always been criminal sanctions for the worst failures of Health & Safety management by companies in their role as employers. Also, in the case of their failure to manage Health & Safety risks that might affect others (perhaps, a passing member of the public).

In February 2016, definitive guidance on sentencing for Health & Safety offences was issued. Since then, the number and size of related fines have been growing. Many fines are now over ￡100,000.

The two main sources of liability for Health & Safety failings are:

• Common-law duty on employers to provide a safe and healthy place of work for employees
• Duty to ensure others are not exposed to unnecessary risk from the activities of the business

Your statutory obligations

I won’t list all the detail, at the core of the statutory obligations is the Health & Safety at Work Act 1974, together with supplementary regulations which include:

• Management of Health & Safety at Work Regulations 1999
• Management of Health & Safety at Work & Fire Precautions (Workplace Amendment) Regulations 2003

That last gives employees the ability to apply to the Court for an injunction to force their employer to comply with Health & Safety regulations.

So it’s not simply the Health & Safety Executive – the main regulator – who can take your company (and you) to Court; your employees can go direct to Court as well.

When looking at any business or company, its Health & Safety obligations can become quite wide-ranging. Details are driven by various factors. These include:

• Type of activities the business is involved in
• Risks involved with those particular activities
• Number of employees (In some parts of the legislation, the employer’s responsibilities become more formal when they have over a certain number of employees)

Core obligations of the Health & Safety at Work Act 1974

Under Sections 2 and 3, employers are responsible for ensuring the Health & Safety of their employees and others affected by their activities.

The benchmark against which compliance is measured is “as far as is reasonably practicable”.

Perhaps oddly, that’s quite a high standard. It means that, if preventative measures are available in the market, you would be expected to be using them.

For example, as fire hydrants and alarms are widely available, it would be hard to explain why you don’t have them on your premises. Or, if you are using machinery without guards on the active parts of the machine when they can be purchased quite easily, it would be hard for you to justify why it’s not possible for you to fit them.

Health & Safety management

The employer is also responsible for assessing and reviewing work-related risks of their employees and others.

You have to make sure that assessments and reviews are “sufficient and suitable”. This is an ongoing obligation – not something you can do once and then forget. You have to keep up-to-date and relevant because obviously, things change, and what preventative measures are available can change.

You also have a duty to make proper arrangements for planning, monitoring and review of Health & Safety risks and preventative and protective measures. This goes further.

You must:

• Audit whatever procedures you have to ensure they are adequate
• Appoint at least one person to be responsible for implementing the required measures to comply with Health & Safety laws and regulations
• Provide proper information and training and the risks and preventative and protective measures that are in place to control those risks

Simply appointing one or more people to be responsible to implement Health & Safety measures doesn't remove the responsibility that other Directors and Senior Managers have for measures doesn't remove the responsibility issues.

It’s a step that’s required for a company to demonstrate that it has meaningfully engaged with its Health & Safety risks and management. Clearly, a company that doesn’t give anyone real-life day-to-day working responsibility for managing the risks is not attempting to do so. It would be hard for such a company to demonstrate they are taking those risks in any way seriously.

More than five employees

Some of the requirements on an employer become more formalised when there are more than five employees.

As soon as your staff level reaches this number, you must have a written Health & Safety policy which describes the arrangements in place for managing the risks, and how those arrangements are put into practice.

The written policy must be:

• Shared with employees and they must be notified of changes
• Updated when appropriate
• Include a written record of arrangements for planning and review of Health & Safety measures

A written record of risk assessments and their findings is also required.

Any breach of these obligations (in common with other Health & Safety breaches) amounts to a criminal offence on behalf of the company, and can lead to a range of sanctions up to and including unlimited fines.

Where an individual might be liable

Section?37 of the Health & Safety at Work Act 1974 states that an individual Director, Company Secretary or Manager can be held criminally responsible for Health & Safety offences.

For this to happen, two tests are applied when the company is convicted and found guilty of a Health & Safety offence. It must be committed either:

• With the consent or connivance of the individual OR
• Attributable to neglect by the individual

Let’s define those terms.

Consent = Knowledge or awareness (not necessarily positive approval) that the breach was taking place

Connivance = Knowing about the risks but doing nothing about them

Neglect = Unreasonably breaching a duty of care

A further punishment available if the Director or Senior Manager is convicted of such an offence includes a court order which disqualifies the individual from acting as a Director for up to 15 years from the date of the conviction.

Insurance

Maybe you’re thinking that, if things go wrong, you’ll be protected by Directors’ and Officers’ insurance – think again. This only protects you to a limited extent. Directors’ and Officers’ insurance covers legal fees for you to get advice and representation if you’re prosecuted. However, at the end of the process, if you’re convicted of an illegal act, insurance won’t cover the fine you have to pay.

What next?

Part 2 of this article is coming soon, with information about the offence of corporate manslaughter.

Meanwhile, you may find some of my other articles useful:

• When the going gets tough (part 1)

• When the going gets tough (part 2)

• Debunking 3 common myths about being a Director

• You’re a company Director. But do you know your duties?

• Directors. Do you understand your responsibilities around company accounts?

Of course, you can give me a call on 020 3609 8764 anytime if you need help with any of this.