Directors’ Duties

Directors and Health & Safety

The main law relating to health and safety is contained in the Health and Safety at Work Act 1974. Beneath this lies an extensive set of Statu­tory Regulations. These place a very wide-ranging set of obligations on employers. Where the employer is a limited company then the starting point is that it is the company that will be liable for a breach of health and safety, typically in the form of a fine. These can now be very sub­stantial and are typically linked to turnover.

Crucially, however, an individual director may personally be held crimi­nally responsible for health and safety offences under Section 37 of the Act where:

1. The company itself is found guilty of a health and safety offence; and
   
   
2. The offence was committed with the consent or connivance of, or was attributable to any neglect on the part of the director.

Consent in this context means that the director had knowledge or awareness of the circumstances and the risks which caused the health and safety failure. Connivance means knowing about the risks but not doing anything about them.

A director who is found guilty of an offence can also be disqualified as a director under the Company Directors Disqualification Act 1986.

In very serious cases a director may be prosecuted for manslaughter and a company may also now be prosecuted for corporate manslaugh­ter (a new offence introduced in 2007). Prosecutions of company direc­tors for manslaughter have been rare, principally because courts have often had difficulty in identifying the “controlling mind”. However, it is easier to do so in the case of smaller companies and such prosecutions are believed to be increasing.

The Health and Safety Executive (“HSE”), who are responsible for enforc­ing the Act have said that one of their main aims is to ensure that direc­tors who fail in their responsibilities are held to account. HSE inspectors have been asked to consider the management chain and the role played in the events leading to an offence by individual directors and managers. This does mean that, where an offence has occurred, the HSE will, during their investigations, look at not only how the offence took place but also the organisational structure, roles and responsibilities and attitude to health and safety more generally within the company. 

In practice it is very difficult for an individual director to have detailed knowledge of health and safety legislation (unless of course this is their particular responsibility) but there are two key things to look at: reporting and procedure:

1. Directors should ensure they are kept informed about the company's health and safety risks and performance. There should be regularly reporting to the board from an individual within the organisation tasked with both carrying out risk assessments and assessing performance. Beware that it is not enough just to receive such reports. Reporting on risks and performance also carries with it an obligation to act where any shortfall has been identified. If action does become necessary then that should also be carefully documented.
   
   
2. Boards must ensure that they have in place clear policies and procedures, including: a plan which sets out the respective roles within the organisation in respect of health and safety; clearly defined management systems; monitoring and reporting and regular review of health and safety within the organisation. Many smaller organisations will use an external health and safety advisor to assist with this task.