November 12, 2015
Director gets 12 month prison sentence for Health & Safety breaches
More and more Directors and Senior Managers are being prosecuted alongside the companies they own or manage for Health & Safety breaches.
Figures published indicate a 400% increase in this type of prosecution from 2000 to 2011 and they continue to feature heavily in the news.
In a recent example, a skip company was fined £65,000, ordered to pay costs of £25,000 and the Director went to prison after an employee fell to his death in an excavator accident. The company was found to have breached fundamental Health & Safety practices.
Ignorance is no longer bliss
In many cases, Directors and Managers will not be able to argue that they were unaware of the events leading to a Breach of Legislation.
The view taken now is that, by virtue of their position, Directors and Senior Managers should know about such matters. Having systems in place to monitor health and Safety and ensure that policies and procedures are properly implemented.
What does the law say?
(1) Where an offence under any of the relevant statutory provisions committed by a body corporate is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or a person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
(2) Where the affairs of a body corporate are managed by its members, the preceding subsection shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.
This allows for the Health and Safety Executive to identify individual Directors or Senior managers within a company and take prosecutions against that individual if they feel that the events leading up to a breach of relevant legislation are a result of the person actions or inactions.
A recent court case
Following a fatal accident in July 2012 a skip company recently pleaded guilty to breaching section 3(1) of the Health and Safety at Work etc. Act, 1974 (HASWA,1974) was fined £65,000 and ordered to pay costs of £25,000.
The Director also pleaded guilty to offences under section 37 of HASWA, 1974 and was given a 12 month custodial sentence suspended for 18 months.
The accident occurred when the deceased decided to run a cable along a previously used route in the rafters of a shed and asked to be lifted in the bucket of an excavator. The excavator driver lifted 2 people and whilst positioning the cable the hydraulic pressure dropped causing the bucket to tip forward. Both men fell nine metres to the concrete floor.
The Health and Safety Executive Inspector said: “This incident resulted in the death of a man who had only just retired and was looking forward to spending time with his children and grandchildren.
“Nobody should ever be lifted in the bucket of an excavator. Neither the bucket nor the excavator have the necessary safety devices nor fail safe devices that would prevent a person falling.
“This company did not have in place the training and supervision and especially the health and safety culture that ensures that nobody would consider undertaking such an obviously unsafe act such as this, and if they did ask nobody would allow it to happen.
As a Company Director / Owner how can you prevent this happening to you?
The starting point is to have an effective Health and Safety Policy and Management System and a positive Health and Safety Culture.
This will only be effective if it is properly implemented, all too often my team find that Health and Safety Policies are not communicated to the relevant employees and that senior staff may not be aware of their responsibilities as outlined in the policy document.
In 2009 the HSE and the Institute of Directors jointly published ‘leading health and safety at work’:
The following Checklist taken from the above publication will help Directors and Owners consider how effectively they are managing Health and Safety.
1. How do you demonstrate the board’s commitment to health and safety?
2. What do you do to ensure appropriate board-level review of health and safety?
3. What have you done to ensure your organisation, at all levels including the board, receives competent health and safety advice?
4. How are you ensuring all staff – including the board – are sufficiently trained and competent in their health and safety responsibilities?
5. How confident are you that your workforce, particularly safety representatives, are consulted properly on health and safety matters, and that their concerns are reaching the appropriate level including, as necessary, the board?
6. What systems are in place to ensure your organisation’s risks are assessed, and that sensible control measures are established and maintained?
7. How well do you know what is happening on the ground, and what audits or assessments are undertaken to inform you about what your organisation and contractors actually do?
8. What information does the board receive regularly about health and safety, eg performance data and reports on injuries and work-related ill health?
9. What targets have you set to improve health and safety and do you benchmark your performance against others in your sector or beyond?
10. Where changes in working arrangements have significant implications for health and safety, how are these brought to the attention of the board?
Our team of professionals can help you answer these questions and develop strategies to help improve your Health & Safety performance where required. Contact us or take a look at our handyemployer resources.
By Phil Barker