Taking extra care with health and safety

The nuts and bolts

As you know, under the Health and Safety at Work etc. Act 1974 your company has some “general duties” towards its employees. Whilst at work you must ensure their “health, safety and welfare” and that they “are not exposed to risks”. If your company doesn’t meet these duties, it can be prosecuted.

Personal duty

But depending on the circumstances, individual directors can also be in the firing line if it’s considered that they’re personally at fault through “connivance, consent or neglect”.

Trap. OnJanuary 1 2009 the penalties directors can suffer for breaching the Act were increased. The maximum fine is now £20,000. Also, where a conviction results in a prison sentence it can be anything from six months to two years.

Careful driver

But a recent case seems to suggest that directors are now more susceptible to prosecution if their company breaches its general duties under the Act. In R v Chargot Ltd 2008 an employee of Chargot Ltd (C) was killed while driving a dumper truck. A subsequent investigation by the Health and Safety Executive (HSE) revealed there were serious shortcomings in C’s health and safety procedures, e.g. no risk assessments and a lack of training in the use of the dumper truck etc.

Not our fault. Both C and its directors were prosecuted by the HSE. This was on the grounds that they had breached their general duties simply because the accident had happened. In defending the case, C and the directors said the HSE couldn’t just say this. Instead, when bringing a prosecution it had to fully “identify and particularise” the specific ways they had breached the Act, i.e. it had to detail their exact errors.

House of Lords decides

The case went to the House of Lords which took the view the general duties under the Act are “results-based”. Therefore, when the desired results aren’t achieved, they are automatically breached. In other words, as soon as an employee is exposed to a risk of injury, or suffers one, their employer falls foul of the Act. So all the HSE now has to show is that an accident has taken place.

Moving forward

What this decision means in practice is that it will be harder for companies to defend prosecutions brought under the Act. This could have severe implications for you as a director, as there will be greater potential for you to be personally pursued where the general duties have been breached.

Not known. But it remains to be seen if the HSE will bring a prosecution against company directors every time there’s an accident at work. At the moment this generally only happens when an employee has been killed or seriously injured.

Tip. Show that your company takes health and safety seriously by having a director who specifically takes on responsibility for it. They should report all findings at board meetings where they can be minuted, and dates can then be set as to when action must be taken by.