Death, taxes and the HSE

JULIAN OUTEN, a partner in the employment department at Ashton Graham, explains that health and safety is a matter for all directors

LIKE tax and death, health and safety it seems, is a certainty of modern life.

Company directors and managers are often ignorant of the extent of their obligations and unaware that they can be held criminally responsible as individuals for a company’s health and safety offences.

Legislation introduced in 2008 created a new offence of Corporate Manslaughter, although the common law offence of manslaughter by gross negligence continues to apply to individuals.

The Health & Safety Executive (HSE) Enforcement Policy states that one of its purposes is to ensure that directors who fail in their responsibilities are held to account, by prosecution if necessary. Evidence that an offence has been committed either with the consent of a director or the board, or their “connivance” or neglect, will lead to prosecution.

The updated UK Corporate Governance Code reinforces the requirement to maintain a sound system of internal controls to safeguard shareholders’ investments, and in practical terms this extends to health and safety. All directors need to be aware of, and accountable for, all areas of risk and not just those pertaining to their particular area of expertise. Any individual director should ensure that he or she is kept informed about the company’s health and safety risks and performance. A collective effort by the board is required to discharge duties, with good risk assessment and auditing procedures.

To assist, the Institute of Directors and the HSE publish guidance for directors. It is not mandatory, but will carry weight in the event of an inspection or investigation. The agenda includes defining clear roles for the board, monitoring health and safety through specific and routine reports, and formally reviewing health and safety performance at least once a year.

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A recent government review by Lord Young has found that businesses are confused about their legal obligations, which itself hinders the proper application of health and safety law. The recommendations include consolidation of current health and safety legislation into a single set of accessible regulations and the production of clear and practical guidance.

The extent to which Lord Young’s recommendations will be followed, and how more user-friendly a system we are left with, remains to be seen but the basic principle of collective and individual responsibility of directors and management is likely to remain at the fore.

This article is for general information purposes only and does not constitute legal or other professional advice. We would advise you to seek professional advice before acting on this information.