In the line of fire
The Health & Safety Executive is increasingly targeting individuals for prosecution. Andrew Bennett says local authority directors and senior managers should take note.
Directors and senior managers at all local authorities 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 personally liability under health and safety law? In times of dramatic public sector cut backs, the Health & Safety Executive 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!).
Recently a leading health and safety magazine described how the number of senior managers individually prosecuted by the HSE had “rocketed by more than 400% in the last five years”. This confirmed the suspicions of many Health and Safety practitioners who have seen a growing trend towards targeting individuals, rather than organisations, by the HSE. In general, HSE enforcement action against organisations 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 and the Current Law
When the main provisions of the Corporate Manslaughter Act came into force in April 2008 this was deemed a necessary and powerful change in health and safety law. Local authorities as major landowners, event organisers and providers of services and facilities endeavoured to ensure they were up to speed with the changes the Act created. 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 a change 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 an organisation or that 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 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.
The Corporate Manslaughter Act has resulted in many organisations being subject to Police investigations over the last four years. While the threshold for prosecution has only been reached twice in those four years, the information collected by the Police during their extensive investigations has often been passed to the HSE who then have chosen (on many occasions) to target individuals under section 37. Police investigations under Corporate Manslaughter must consider who are the senior managers in the relevant organisation, and what their level of involvement in the events leading to the death has been. Often this requires interviewing these members of staff in circumstances similar to an interview under caution scenario. The information they obtain through these interviews helps the HSE pinpoint who to target under section 37 and gives them exactly the sort of information they require to prosecute under this provision.
With the advent of the Health and Safety (Offences) Act 2008 now allowing individuals convicted under section 37 and other health and safety provisions to be imprisoned for up to 2 years, it is debatable whether the Corporate Manslaughter Act now carries the greatest publicity threat to an organisation when they are involved in a fatal accident. Does the organisation want to be labelled a “Corporate Killer” and face a potentially enormous fine or can it stomach having a senior manager being put in prison for health and safety offences? Or worse still, what if Corporate Manslaughter and section 37 prosecutions were brought together? The Court in the first Corporate Manslaughter prosecution (Cotswold Geotechnical) showed a reluctance to combine Corporate or Individual Manslaughter with a related prosecution under the 1974 Act because of a worry that the different tests under the different legislation may be confused by the Jury. This has been seen in previous cases involving individual gross negligence manslaughter prosecutions combined against corporate offences being prosecuted under the 1974 Act (e.g. the prosecution of the Dreamspace tragedy). However “joint section 37/Corporate Manslaughter” cases are not an unforeseeable scenario for future cases particularly if the legal tests for Corporate Manslaughter become clearer and clearer over time through judicial examination.
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. 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 organisation for the purposes of health and safety prosecutions. Alternatively, some advocated the approach of the Republic of Ireland whereby as soon as an organisation is 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 5 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
For many years section 37 was reserved for the very worst cases of health and safety breaches by individuals. Indeed, it was usually only brought against people at the very top of small organisations in fatality cases deemed serious enough to bring individual manslaughter charges against the same individual/s as a way of ensuring that the individual/s were convicted of something even if the related manslaughter prosecution failed.
Back in 2006, the Gillian Beckingham (Barrow Borough Council) case, involving Legionnaires Disease and at least five fatalities, demonstrated that even those in middle management within local authorities can be singled out and punished for major health and safety breaches. Indeed, 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. 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 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 organisation is not prosecuted under the Corporate Manslaughter Act.
Practical Advice for Individuals and Organisations
The people at the very top of any organisation need to know about the potential for individual fines and imprisonment if health and safety breaches are committed with their consent, connivance or neglect. When directors and senior managers are individually investigated and prosecuted for health and safety breaches this will be very damaging to an organisation unless they can conclusively show that the particular individual acted wildly outside of policy and procedure. Organisations need to make sure that a positive culture of health and safety runs throughout their work undertakings, so that mistakes and risks to health and safety can be identified and acted upon by all members of staff, and not just a select few of interested dedicated health and safety professionals.
In public authorities, individuals prosecuted for health and safety breaches will usually have their defence costs paid for them by their organisation. However, public policy also dictates that in the event that the individual loses their case, the public authority they work for will then request that they pay all of these defence costs back into the public purse. Whether this is fair or not, senior managers at local authorities need to be made aware of this risk as a further reason to take their health and safety responsibilities seriously.
As discussed above, there have been no formal changes to HSE guidance on prosecuting individuals that have 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 and local authorities will often be the easiest, most familiar place for them to start. After the accident is too late to think about the legal, moral, and contractual duties under health and safety law owed by individuals and organisations 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 at Eversheds. He can be contacted on 0845 497 9797 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..
