The introduction of the 2016 Health & Safety Sentencing Guidelines has resulted in a significant increase in the level of fines imposed and potential imprisonment for senior individuals following a conviction at court for a health and safety breach. It is therefore pertinent that senior executives understand the implications of being involved in a health and safety incident or failing to appreciate associated regulatory risks within or around the workplace. This is especially important when they can be held personally liable for potentially exposing relevant persons to the risk of injury.
What does the health and safety legislation say?
The Health and Safety at Work etc. Act 1974 states that if a health and safety offence has been committed by an organisation, with the consent or connivance of, or attributable to any neglect on the part of any director, manager, secretary or other similar officer (or a person purporting to act in any such capacity), then that individual as well as the organisation will be guilty of an offence. There is no need for actual knowledge of the material facts giving rise to a health and safety breach – just that they ought to have been aware of the circumstances. There also does not have to be any actual injury for there to be a criminal investigation or prosecution – the focus is on the "risk of harm" rather than any actual harm caused.
There has been increased scrutiny by regulators, such as the police or the Health and Safety Executive, on the actions of senior individuals, even where an incident is relatively minor. The push to publicly recognise personal accountability in the UK means that potential liability is clearly no longer reserved for corporate entities. Senior personnel need to be aware that the responsibility for health and safety rests ultimately with them.
Individual directors and senior managers who have failed to fulfil their health and safety obligations can be personally prosecuted and face unlimited fines and imprisonment of up to two years. This is to be increased to a 10 year maximum sentence for building safety breaches. Directors could also be disqualified from being a director for up to 15 years. For an actual incident that results in a fatality due to senior management failings, individuals convicted of gross negligence manslaughter may face unlimited fines and a maximum term of life imprisonment.
While immediate prison sentences for senior individuals are still relatively uncommon, it has become much more of a reality in recent years. The convictions in the well-publicised prosecution of Greenfeeds Ltd and its directors illustrate the extreme consequences of failing to manage health and safety effectively. Found responsible for the deaths of two workers involved in cleaning road haulage tankers, Greenfeeds received a seven-figure fine and its senior managers were disqualified and received substantial custodial sentences. The case illustrated not only systemic corporate health and safety management failings, but also a failure on the part of the senior individuals to appreciate relevant risks and implement proper monitoring and supervision measures.
Why focus on senior individuals when it comes to health and safety?
The rationale is clear: organisations can only demonstrate a positive health and safety culture by leading from the 'top'. Regulators want to ensure that those with authority take full responsibility for the health and safety failings of their business. This includes executive and non-executive directors, board members, senior managers and any other managers responsible for monitoring workers and their activities.
Most directors and senior managers are aware of their health and safety duties, but they do not always protect or prepare themselves or their business for health and safety risks and the consequences that could follow.
There are common risks that should be addressed by organisations, regardless of sector or industry:
- Providing information, supervision and adequate training for workers
- Reporting accidents, sickness absence and return to work
- Driving and transport issues
- Fire safety
- Building safety
- Lone working
- Young or pregnant workers
- Work related stress / mental wellbeing
- Work equipment / personal protective equipment
- Risk assessments and method statements
One way for senior management to address those risks and lead from the top is to consider the joint guidance on director’s duties from the Health and Safety Executive and Institute of Directors. It sets out a framework for the effective leadership of health and safety, promoting the principles of:
- strong and active leadership from the top;
- worker involvement;
- assessment of risk; and
- monitoring and reviewing performance.
Directors and senior executives need to be able to show that they have taken all reasonable steps to manage risks and have effective health and safety management systems in place, if they want to avoid the serious (and personal) implications of failing to proactively achieve health and safety compliance.
How Mishcon de Reya can help with your organisation's health and safety
We have significant experience representing senior executives being investigated or prosecuted for breaches of health and safety legislation. Additionally, we regularly advise both corporate clients and senior executives on health and safety and regulatory compliance in the workplace.
- Due diligence reviews of company policies and practices: guidance on how to demonstrate compliance through best governance and leadership practice
- Dealing with incident response protocols: supporting corporate clients and their senior individuals in the immediate aftermath of an incident. We assist with the management of legal and reputational risk and provide representation throughout the investigation and prosecution process (interviews with regulatory authorities or police, disclosure and trial or inquest).
- Conducting a 'health check' of the company's policies and practices: a hypothetical scenario tests how systems and documents would stand up to scrutiny in the event of an incident. We can help to test how your organisation and its senior individuals would deal with the immediate aftermath of an incident.
- Tailored training, seminars and webinars: for Boards and senior executives on health and safety compliance and how to protect themselves and their organisation.
- Mock trials and interviews under caution: this is a useful tool to demonstrate to senior executives what can happen when a health and safety incident occurs within the workplace and the legal procedures that can follow.