Can a business owner or a member of the senior management team be held liable for health and safety breaches?

19 December 2022 | Shabir Karatella

A substantial majority of health and safety prosecutions are brought against corporate entities rather than individuals. However, there is a noticeable shift (due to the HSE Enforcement Policy Guidelines) towards personal liability under the  Health and Safety at Work Act 1974, enforced by HSE and local authorities.

 The HSE Enforcement Policy requires inspectors to "identify and prosecute individuals... where there have been personal acts, failings, or connivance by an individual..." The emphasis is on focusing on those who are responsible for the risk and are best placed to control it. Where breaches are proved, the potential outcomes for individuals include disqualifications, fines, and custodial sentences. The introduction of the Sentencing Guidelines for Health and Safety and Corporate Manslaughter Offenses (2016) has directly led to a substantial increase in personal prosecutions as well as increased fines (depending on the severity of the breach and the seriousness of the consequences). Even when an early guilty plea is submitted, usually leading to a discount of up to a third, prosecution costs can be prohibitive. Furthermore, the HSE Fees for Intervention are charged by authorities for investigating and enforcing breaches, and these are £163/hr, which must be settled within 30 days.

Under Sec. 7 of HSAW 1974, it is the employer’s duty to take all reasonable and necessary steps to safeguard the safety of their staff. Where there is evidence that the employer is liable, they are likely to be prosecuted as a corporate body. However, where the employer has taken all reasonably practicable steps, the investigation can extend to the employee. Consideration will be given to whether the employee followed the employer’s health and safety policies and practices, whether any previous warnings had been issued to the employee, and whether the breach gave rise to a serious risk.

Sec. 37, HSAW 1974, is important to note. Where the offence was committed by an individual and arose due to the act or omission of that individual, that person is liable. This section will require proof that a breach has occurred and that it was committed with the "consent or connivance of, or has been attributable to any neglect on the part of the accused..." Business owners, directors, and senior management are responsible and are expected to know their safety practises and to take steps to safeguard safety, and it is this section that catches them out.

So what should owners and senior management do to protect themselves?

  - Ensure they have adequate and reasonable health and safety policies/procedures.

  - Review and update these regularly.

  - Implement these policies and practices.

  - Devise a safe system of work, including duties towards contractors and visitors.

  - Promote a positive and healthy health and safety culture within the workplace.

  - Provide and promote health and safety training and instruction.

  - Provide appropriate equipment for work, with scheduled maintenance.

  - Provide appropriate protective equipment and training on its proper use.

The article is for informational and educational purposes only and should not be relied upon as legal advice. Should you need any further assistance on the matter, please do not hesitate to call our advice-line team for free on 0116 274 9193

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