The number of senior managers individually prosecuted by the HSE has increased by more than 400% in the last five years

The HSE is targeting individuals, rather than organisations, in response to the cuts, warns Andrew Bennett

Directors and senior managers at all organisations should know the importance of taking health and safety seriously, both for themselves and for their organisation. However, how many of these senior officials know and take seriously the risks of personal liability under health and safety law? In times of dramatic public sector cut backs, the HSE is finding the prosecution of individuals a much easier, quicker, and cheaper method of punishing health and safety crimes than prosecuting organisations (or even full-blown police-led Corporate Manslaughter prosecutions in the event of a fatality!).

A leading health and safety magazine recently reported that the number of senior managers individually prosecuted by the HSE had “rocketed by more than 400% in the last 5 years”. This confirmed the suspicions of many Health and Safety practitioners who have seen a growing trend towards targeting individuals, rather than companies, by the HSE.

In general, HSE enforcement action against companies is decreasing as HSE resources are slashed by public sector cuts. However, it is clear that directors and senior managers must be extra diligent in relation to health and safety matters as the HSE seeks to single out those at the very top of organisations.

The interaction with Corporate Manslaughter

When the Corporate Manslaughter Act came into force in April 2008 it was deemed a necessary and powerful change in health and safety law. However, about a year before this, 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 one that has arguably had as much impact (if not more) than the Corporate Manslaughter Act.

Section 37 is committed when a breach of health and safety law by a company or 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 company or 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.

R v P therefore served the purpose of reminding the HSE and all those involved in health and safety law of the section 37 power to prosecute individual directors and senior managers. The Court of Appeal also chose to send out a reminder that section 37 also contains a power to disqualify directors as a potential sentence – a power that was used a mere 10 times between 1986 and 2005.

Lofstedt, Cameron and costs recovery

In the last two months we have had renewed publicity for health and safety in mainstream news through the publication of Professor Ragnar Lofstedt’s report, ‘Reclaiming Health and Safety for All’ and David Cameron’s recent comments about health and safety regulation being ‘bad for business’.

Additionally, the HSE recently announced their plans to introduce a scheme (in April of this year) by which they could 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 is a growing trend towards targeting individuals, rather than companies, by the HSE

Yet after all the pomp and publicity has died down, we are left with the same health and safety case law, and the same HSE who have been given no additional guidance on the targeting and prosecution of individuals.

In previous times, during the boom of health and safety regulation, there were calls for a specific health and safety ‘directors’ duty’ to be created, akin to what is in place in other European countries where directors are nominated as responsible for health and safety and even, in some cases, become the company for the purposes of health and safety prosecutions.

Alternatively, some advocated the approach of the Republic of Ireland whereby as soon as a company or 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. 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 director focused information often provided by the police to the HSE (in circumstances as described above), such a provision or a statutory duty seems somewhat unnecessary.

Current case law and the HSE’s policy

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.

Directors and senior managers must ensure that health and safety is taken seriously at all levels

While not all recent section 37 prosecutions have been related to a fatal incident, when serious incidents do occur (whether fatal or not) the Courts now have the powers and the confidence to punish directors.

The sentence given to Richard James, sole director of Southern Property Maintenance, for his conviction for four breaches of section 37 of the 1974 Act highlights the risk of imprisonment and heavy fines for directors. Mr James was sentenced to six months imprisonment, suspended for two years, 150 hours’ community service, a fine of £120,000, and was ordered to pay costs of £21,000 following the death of 21 year old Shane Offer who fell through a roof of bed store Rosebys in June 2009.

Additionally the prosecution of one of the three directors of Parcol Developments Limited (George Collier) last year for gross negligence manslaughter shows that the CPS have not forgotten that this offence can be used to prosecute individuals in health and safety cases, even when the associated company is not prosecuted under the Corporate Manslaughter Act.

Practical advice for individuals and companies

As already stated, there have been no formal changes to HSE guidance on prosecuting individuals that has prompted its recent targeting of individuals. The Institute of Directors (IOD) and HSE Guidance ‘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 the detail 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.

Directors and senior managers beware: the HSE wants to expose and make an example of more individuals in 2012. It is too late, after the accident, to think about the legal, moral and contractual duties under health and safety law owed by individuals and companies to colleagues and employees.

All individuals who have the power to instigate changes in health and safety at their organisations need to envisage the worst case scenarios and seek advice if they are unsure of what their health and safety responsibilities are, and think about what they would do, and where they would stand, in the event of an accident.

Andrew Bennett is a Solicitor in Eversheds’ National Health and Safety and Environment Team (ranked Number 1 in the UK by Chambers Guide). He specialises in defending health and safety and environmental prosecutions, and product and food safety compliance issues.