According to figures from the HSE, the number of directors and managers prosecuted in recent years has more than doubled. In stark contrast with this increase, the number of employees being prosecuted by the HSE is dramatically falling. The increase in personal risk that company directors, managers and officers carry is as a consequence of section 37(1) Health & Safety at Work Act 1974 (HSWA). This section allows company directors, managers and officers to be personally prosecuted for offences committed by a body corporate; when it’s proved that the offence was committed with their consent or connivance or attributable to any neglect on their part. Directors can also be charged for breaching other regulations and sections of the HSWA.
The HSE are now increasingly willing, some would argue actively seeking, to bring personal prosecutions against those in control of businesses:
- 46 directors and senior managers were prosecuted under Section 37 in 2015 to 2016
- prosecutions of employees has fallen to just one in 2015 to 2016.
Of those 46 prosecutions, 34 directors were convicted, one was found not guilty and the HSE offered no evidence against the remaining 11. Of the 34 convicted, 12 were given prison sentences; the longest prison sentence being two years, and two were disqualified from being directors; one for two years and one for ten years.
These figures clearly demonstrate an increased zeal of the HSE to prosecute and hold accountable the most senior individuals within a corporation, often ignoring more culpable employees. This shift in focus, and the increase in custodial sentences, is clearly a worry for the boardroom. This, coupled with the fact that fines are now routinely hitting the £1m mark for non-fatal offences since the new sentencing guidelines came into effect in February 2016, makes for a worrying time for directors.
The rationale behind this shift in focus appears obvious; health and safety culture within an organisation can only be improved if led from the top. It is clear that the HSE and courts want to ensure that those with the highest authority in organisations take full responsibility for the health and safety failings of their business. Whilst most people are aware of their health and safety duties, not all always adequately protect or prepare themselves for a situation in which their business is involved in a serious health and safety incident.
At Birketts we often advise organisations after a health and safety incident has occurred and the HSE or Police are on site. Our advice is to ensure that, as a business, you are fully aware of your health and safety duties and are prepared should an incident occur. Consideration of health and safety should be treated as a priority by all organisations, importantly, by the directors or senior managers of those organisations. We offer training courses and presentations to boards on their duties under health and safety law so please don’t hesitate to contact us if we can help.
Finally, please don’t forget the Birketts’ health and safety mantra:
- Say what you do.
- Do what you say.
- Have the paperwork to prove it.
The content of this article is for general information only. For further information, please contact Julie Gowland or a member of Birketts' Health and Safety Team.
This article is from the March 2018 issue of Health and Safety Help!, our newsletter for professionals tasked with health and safety matters. To download the latest issue, please visit the newsletter section of our website. Law covered as at March 2018.
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