Changes in the law in recent years mean that a health and safety failure could now result in criminal convictions for both your organisation and you personally. What’s more a ‘hear no evil, see no evil’ defence simply won’t cut it. As a director, the onus is on you to manage health and safety proactively, and the law will therefore hold you accountable for any failings.
So, what are the 4 key challenges? And what can you do to ensure you don’t fall foul of the law?
The stakes have been raised by the Health and Safety (Offences) Act 2008, as now directors convicted of mainstream health and safety offences can potentially be sent to prison for up to two years. This will only happen in the worst cases but the possibility of prison certainly changes the outlook when individuals are charged.
2. Corporate Manslaughter
The introduction of corporate manslaughter legislation means it’s now going to be easier to convict a large or medium sized organisation for fatal health and safety failings. Rather than needing to identify one ‘directing mind’ who has personally been grossly negligent, prosecutors can amalgamate lesser individual failings across more than one member of senior management.
When deciding whether to convict an organisation the jury is instructed to consider: ‘The extent to which…attitudes, policies, systems or accepted practices within the organisation …were likely to have encouraged a failure.’
The new importance given to attitudes for example means that it is critical how your staff will answer the following police question: “How seriously does senior management treat health and safety?”
With this in mind, can you be confident that your employees would say that the directors set a good example and take safety seriously? Or, would they say that directors have turned a blind eye to safety matters and scrimped on health and safety training or equipment? With so much at stake you can see why it’s now more important than ever for those at the top to send out the right messages when it comes to managing safety.
3. Increasing Fines
Having previously been criticised for being too low, in recent years fines in health and safety cases involving fatalities have routinely been hundreds of thousands of pounds. In fact, new corporate manslaughter sentencing guidelines introduced in 2010 state that health and safety offences causing death should incur fines of at least £100,000; with corporate manslaughter offences resulting in fines seldom less than £500,000 and potentially in the millions.
If recent economic conditions have forced you to seek ways in which to work more efficiently, including by reducing staff numbers, then you’re far from alone. However, the sentencing guidelines include a list of “aggravating factors” which will lead to a higher sentence in the event of a conviction. As these include “cost-cutting at the expense of safety” it’s vital that as a director you have carefully considered the safety related consequences of any job cuts.
So, how can you avoid personal criminal liability?
First, you can no longer adopt the approach of simply dealing with safety issues as they arise. You must have relevant, up-to-date and thorough health and safety policies in place to cover your areas of operation, as well as staying up to date with the latest health and safety legislation. These must be clearly understood and acted upon by all in your organisation.
The appraisal process can be an effective way of motivating individuals to consider their health and safety performance, so you may want to include health and safety performance in the appraisal forms of all employees. Health surveillance can also play its role.
In the unfortunate event that an accident does occur within your organisation, employees and managers will need to know how to respond both in the instance and the aftermath. These procedures should be captured in an incident response protocol, ideally drafted with specialist legal input.
It has never been more important to set the right ‘tone at the top’ – these are important issues that you can’t afford to ignore and training on understanding director involvement in safety might prove a good starting point. More than ever, directors and senior managers need to understand their legal duties and actively lead the cultural safety agenda in their organisation. Who knows – you might even end up saving a life?
Bio: Dr Simon Joyston-Bechal (email@example.com) is a director at Turnstone Law Ltd. Having previously studied medicine at Cambridge University and qualified as a doctor, Simon is uniquely placed to cover all safety or health related aspects of disputes and regulatory matters. His experience includes advising employers on avoiding health and safety liabilities and handling accident investigations, inquests and prosecutions, including numerous fatal accidents. Simon represented Cotswold Geotech defending the first case brought under the new corporate manslaughter legislation. He also writes and lectures extensively on health and safety law, and has shared his specialist knowledge as a speaker at recent RoSPA events.
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