The Health and Safety (Offences) Act 2008

Due to come into force in January 2009, the Health and Safety (Offences) Act in no way alters existing health and safety requirements, but it will transform sentencing for H&S breaches, increasing significantly the number of offences for which individuals may be imprisoned. Those now at risk include directors, managers, the self-employed, partners and employees.

Historically, the criminal courts have readily distinguished H&S offences as regulatory breaches where the accused could be convicted for simply failing to meet a standard of care, in marked contrast to truly ‘criminal offences’, which required proof beyond reasonable doubt of the accused’s criminal intent or recklessness, e.g. theft or violence offences.

The counterbalance to this position has always been that whereas lengthy terms of imprisonment await those convicted of ‘criminal offences’, the maximum penalty for breach of the general duties of the Health and Safety at Work Act (HSWA) 1974 and supporting regulations has only ever been a financial one.

Imprisonment

The new legislation allows the imposition of a maximum penalty of imprisonment of up to two years for any person convicted of breaches of the HSWA, and the supporting health and safety regulations, as well as offences relating to obstructing inspectors and breaching prohibition and improvement notices.

Additionally, the maximum penalty for breaches of regulatory offences in the magistrates’ courts has been increased from £5,000 to £20,000 and a significant number of offences have been upgraded in gravity to allow them to be tried before a Crown Court. The penalty of an unlimited fine before the Crown Court remains unchanged.

Directors and managers

The well established provisions of section 37 of the HSWA enable individual prosecution of any director, manager, secretary or other similar officer of a corporate body where the corporate body itself is alleged to have breached a duty and the breach is proved to have been committed with the ‘consent, connivance or neglect’ of the individual in question.

Liability does not attach to an individual because of the name that is attributed to their role in the company, but because of the authority and responsibility that they have within it. Prosecutions using section 37, while not routine, are equally not uncommon. Also, following the introduction of the statutory offence of corporate manslaughter in April 2008, which requires evidence of ‘senior management failure’ with regard to health and safety duties, the intense scrutiny senior managers are now subjected to by both the police and Health and Safety Executive, usually while under arrest in a police station, is highly likely to result in more prosecutions under section 37 of the HSWA as evidence of health and safety breaches is gathered.

Since the corporate manslaughter legislation expressly precludes any individual prosecution, it would be naïve to believe the evidence of senior management failure will be used solely to prosecute an organisation but not an individual under the HSWA – the investigators will use it for both. The H&S (Offences) Act has answered the criticism by pressure groups and trade unions that the corporate manslaughter legislation did not include individual liability or custodial sentences.

Employees

All employees have a general duty under section 7 of the HSWA to take reasonable care for the health and safety of themselves, those who may be affected by their acts or omissions, and also to assist their employer in discharging its HSWA duties.

In larger corporate entities across all industries, ‘an employee’ is likely to include individuals as senior as branch and store managers, site and plant managers, together with regional and divisional managers, in addition to any other individual who does not fall within the ambit of section 37 HSWA – i.e. those with actual authority to bind the business as a whole.

Clearly, the proposed changes provide scope for a significant rise in the number of individuals who could now face the possibility of a prison sentence for non-compliance with their H&S duties.

Prosecutions of employees remain significantly less common than those of employers. Nevertheless, while experience suggests the HSE/local authorities appear reluctant to prosecute individual employees, particularly where death or injury has been caused to their work colleague or friend (despite evidence that the section 37 duty has been breached) some inspectors do, on occasions, take action therefore employees can ill-afford to ignore the risk of imprisonment.

Government and HSE support

Department of Work and Pensions minister Lord McKenzie said of the Bill [now an Act]: “Good employers and diligent managers and directors have nothing to fear from the Bill, indeed they have much to gain as it tackles the commercial advantage that unscrupulous businesses gain from non-compliance.”

He also confirmed that the Act would not add to or change existing H&S requirements and that regulators would not change their policy on prosecution of individuals as a result, stressing that imprisonment should be reserved for the most serious matters. HSE chairwoman Judith Hackitt made similar comments, stating: “The new Act sends out an important message to those who flout the law. However, good employers and good managers have nothing to fear. In fact, they have much to gain.”

Existing duties

While the legislation does not impose any new H&S duties on businesses, it is now more important than ever that H&S in the workplace becomes a top priority and that appropriate systems are in place to ensure regulatory compliance. It is instructive to note that for the most serious health and safety offence – corporate manslaughter – juries will be specifically directed by the judge to consider whether a business has had regard to any relevant existing H&S guidance, such as that issued by the HSE, when determining whether there has been compliance with its H&S duties. Public­ations and general guidance can be found on the HSE website.

And finally

The introduction of custodial sentences for quasi-criminal offences, requiring no criminal intent and a reverse burden of proof appears somewhat Draconian. However, from the regulator’s compliance and deterrence perspectives it appears to dovetail well with the corporate manslaughter legislation to ensure that record fines may be awarded against companies and individuals imprisoned for the most serious H&S breaches.

Clearly, prevention is better than cure however, whether the spectre of custodial sentences may actually result in decent and good people being fearful or reluctant to assume H&S roles is yet to be seen.

Chris Morrison, partner and Lucie Field, solicitor, Halliwells

Policy Guidelines

  • Ensure appropriate board-level review of health and safety
  • Ensure your organisation, at all levels including the board, receives competent health and safety advice
  • Ensure all staff, including the board, are sufficiently trained and competent in their health and safety responsibilities
  • Ensure the workforce, particularly safety representatives, are consulted properly on health and safety matters, and that their concerns reach the appropriate level including, as necessary, the board
  • Develop systems to ensure your organisation’s risks are assessed, and that sensible control measures are established and maintained
  • Ensure audits or assessments are undertaken to inform you about what your organisation and contractors actually do
  • Ensure the board receives regular health and safety reports e.g. performance data and reports on injuries and work-related ill health
  • Set targets to improve health and safety and benchmark your performance against others in your sector or beyond

Where changes in working arrangements have significant implications for health and safety, ensure these are brought to the attention of the board.

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