Recent figures show that directors and senior managers are in the firing line more than ever for significant health and safety failings, some of which have resulted in imprisonment or substantial financial penalties for the worst cases. BLM health and safety partner Helen Devery investigates the causes of the recent rise in prosecutions and how they can be avoided.
In response to a freedom of information request, the Health and Safety Executive (HSE) confirmed that prosecutions against directors and senior managers under section 37 of the Health and Safety at Work 1974 increased significantly between 1999 -2011.
For those unfamiliar with Section 37, this offence is committed when a breach of health and safety law by an organisation has been committed with the consent, connivance, or neglect of any director, manager or secretary of the organisation.
Those found guilty are liable to be fined, disqualified from being a director and in serious cases imprisoned, which shows why the information released by the HSE should be taken seriously.
According to the HSE’s figures, 43 directors were prosecuted under Section 37 in 2010/2011 – the highest figure since 1999/2000, seven of whom were prosecuted for offences that resulted from an investigation where there had been a fatal accident. Of the 43 individuals prosecuted in 2010/11, 35 were convicted.
Delving deeper into the HSE’s information, it also reveals that in 2008/2009, three directors received prison sentences for manslaughter, ranging from four and half months to two years, while two directors were jailed for perjury for 15 months and three years respectively.
In terms of fines rather than custodial sentences, during the 2010/2011 period, the fines imposed on directors ranged from £1,500 to £30,000.
The information underlines that there is possibly a trend towards the HSE targeting individuals as well as companies.
Some of the more recent prosecutions included a managing director who was fined £1,800 after an employee’s arm was crushed while cleaning machinery, a director of a masonry company who was sentenced to 10 months in prison, suspended for two years, after exposing workers to harmful stone dust, and another director who was fined £3,000 after a young father of two suffered life-changing injuries after he plunged seven meters through an unsafe and fragile roof.
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The key message for owners of all businesses, no matter how big or small, is that safety should be a priority at board level and ignorance is not a compelling defence to any prosecution.
There is a plethora of information and safety advice available to businesses of all sizes and it is incumbent on directors and boards to ensure that those tasked with safety management are suitably qualified and that safety is given the same priority as production and profitability.
Essential reading is the Guidance from the Institute of Directors and HSE “Leading Health and Safety at Work” which is downloadable from the HSE website: http://www.hse.gov.uk/pubns/indg417.pdf.
There are other useful guidelines available from the HSE and safety associations such as IOSH and the British Safety Council.
Risk assessment is key to the safety management process coupled with effective and validated training for all employees. Having pro-active audit systems will help to flush out the gaps in safe systems of work and so companies should adopt this approach to all its safety at work policies.
Due to the increasing number of individual prosecutions, it would be prudent to check the adequacy of coverage under your Directors & Officers insurance policy. The wording of the cover should be broad enough to fully cover the risks and the nature of the business.
The ownership of safety and risk is at the heart of this issue. There are many economic challenges facing UK businesses and directors, but taking time to promote robust safety management can make a positive impact on the profitability and success for the company and its people. Directors may sleep easier at night knowing that safety is in safe hands.
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