Guidance

1. Summary

An organisation functions under the direction of its directors and senior managers. As a result, directors and senior managers have particular responsibility for the health and safety performance of that organisation.  There are three main parties who could be prosecuted for a safety offence:

• The Employer – this is the company or organisation that actually employs people
• The Occupier of the Premises – The organisation that actually occupies the premises (i.e. not the landlord)
• The Controlling Mind – the person who is said to embody the company (this can be any manager in the organisation who defines the work, sets the processes or supervises the way in which work is undertaken).

The Health & Safety Executive will look at the role of individual directors, managers, employees and other individuals as part of their criminal investigations in the event of a serious injury, near miss incident or fatality.  If the evidence provides a “realistic prospect of conviction” then HSE will follow the ‘Code for Crown Prosecutors Victims of Crime’ (The Code of Practice).

2. Health and Safety Responsibilities of Directors or Managers

If an offence is committed with the consent or connivance of, or is attributable to neglect on the part of, any:

• director
• manager
• supervisor
• company secretary or other similar officer of the body corporate

Then those people may face personal prosecution under s.37 of the Health and Safety at Work, etc Act 1974 (HSWA).

3. Company Directors Disqualification Act 1986

The court may disqualify a person from being a director of a company if they are convicted on an indictable offence, if the offence was in connection with the management of the company.

A magistrates’ court may impose a disqualification for up to five years, while higher courts may disqualify for up to 15 years.

4. Common (Civil) law

Under common law, a director may be prosecuted for manslaughter.

5. Legal Sanctions

The main umbrella legislation for health and safety is the Health and Safety at Work, etc Act 1974. (See Section 10 below). In the event of a prosecution for a breach of health and safety legislation, the organisation may be fined, however, accountability rests with those who have the most authority to direct the actions of an organisation.

6. Criminal liability of a director or senior manager

Directors, managers and company secretaries have a legal duty to ensure that the company’s statutory duties are performed. Directors may also be prosecuted under common law.

7. Section 37 of HSWA — Offences by bodies corporate

Where an offence committed by a company is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, any director, manager, secretary or other similar officer, they — as well as the company — shall be guilty of that offence and punished accordingly.

8. Civil liability of directors and senior managers

In addition to criminal prosecution for breaches of legislation, there is also the possibility that directors could be involved in civil litigation as a result of their part in damage or injury caused by the organisation that occurred due to their personal negligence.

9. The Corporate Manslaughter and Corporate Homicide Act 2007

• Applies to any gross management failures that result in fatal incidents. Companies whose gross negligence leads to the death of individuals will face prosecution for manslaughter. Organisations face an unlimited fine if they are found to have caused death due to their corporate health and safety failures.

• The Act applies to all organisations that employ people. An offence is deemed to be committed under the Act if the way in which the organisation’s activities are managed or organised:

– causes a person’s death

– amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.

• the way in which its activities are managed or organised by its senior management is a substantial element in the breach.

– “Senior management” is defined as persons who play significant roles in the:

• making of decisions about how the whole or a substantial part of an organisation’s activities are to be managed

• actual managing or organising of the whole or a substantial part of those activities.

10. Health and Safety at Work etc. Act

The Health and Safety at Work etc. Act might have been implemented in 1974, but it is as relevant today as it was then. It’s the act that enables other health and safety regulations to come into power. It’s the driving force behind every health and safety book, policy, regulation and training course. This act puts in place the general health and safety responsibilities of employers which are:

• To ensure, so far as is reasonably practicable, the health, safety and welfare at work of all their employees, and:
• to conduct their undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in their employment who may be affected thereby are not thereby exposed to risks to their health or safety.  In particular:

1. Safe plant
2. Safe systems of work
3. Safe use, handling, storage and transport of articles and substances
4. Providing H&S information, instruction, training and supervision
5. Maintain a safe place of work with safe access and egress (exit)
6. Safe working environment
7. Adequate welfare facilities
8. To produce a written health and safety policy with organisation and arrangements
9. Appointment and consultation with safety representatives where there are recognised trade unions

11. The Management of Health and Safety at Work Regulations

The Management of Health and Safety at Work Regulations contain further general duties for employers. This set of regulations apply to every workplace, and every employer. The duties found here reinforce the general duties under the 1974 Act, and add some extra requirements.

• Carry out suitable and sufficient risk assessments
• Put in place arrangements for effective planning, organisation, control, monitoring and review
• Employ or contract competent persons to help them comply with health and safety duties
• Develop suitable emergency procedures and apply them
• Provide employees and others with relevant health and safety information
• Provide none-employees with relevant health and safety information
• Provide temporary workers with relevant health and safety information
• Cooperate with other employers in shared workplaces over health and safety matters
• Provide employees with adequate and relevant health and safety training

12. Recent Prosecutions

1. Food seasonings manufacturer Symrise Ltd was fined £55,000 for health and safety failings, after a worker suffered partial amputation of his left hand.
2. Warburtons received a £1.9m fine after pleading guilty to a breach of the Provision and Use of Work Equipment Regulations 1998, after an agency worker was injured when his arm became trapped in a machine for 20 minutes and was left with friction burns requiring skin grafts
3. Food flavourings company Frutarom (UK) Ltd was fined after two separate health and safety breaches.  The company was fined £60,000 and ordered to pay costs of £5,603.90 because the toxic gas hydrogen sulphide was released from a liquid being decanted. It was fined £100,000 and ordered to pay costs of £3,992.51 when an agency worker lost four of his fingers when his hand came into contact with mixing blades inside a mixing machine
4. McAlpine fined £260k after worker fell from a height
5. Menzies Aviation (UK) Limited fined £181k after airport baggage handler fractures skull
6. Briggs Equipment UK Ltd fined £150k after heavy equipment fell on a driver
7. 2 Sisters Food Group, were fined £1.4m + £ 38k costs after an employee was hit by a metal stillage, causing serious crush injuries, including a punctured lung and fractures to his ribs and back.
8. Waste recycling company Gaskell’s (North West) Limited was fined £700,000.00 and ordered to pay costs of £99,886.57 for the death of a worker. The Managing Director was sentenced to eight months in prison.

Chances of “Getting Away With It”

• Out of the 199 cases prosecuted by the HSE in 2020/2021, the HSE reports that it secured a conviction in 185 of them, representing a conviction rate of 93% compared to the general criminal conviction rate of 83.6% .
• Average H&S Fines issued by the courts in that period were £145,000