Health & Safety, Offences and Penalties 

for Company Directors.

There are a number of possible offences for people who hold positions of authority they be liable for criminal and civil liabilities.

Those who may be liable are:

  • Any functional director

  • A manager

  • Company secretary

  • Similar officer of the company

  • Anyone purporting to act as any of the above

It is not sufficient that the company through its board of Directors has committed an offence – there must be some degree of personal culpability in the form of proof of consent, connivance or neglect by the individual concerned.

 Directors, managers and company secretaries can be personally liable for ensuring that corporate safety duties are performed throughout the company.  Liability may also arise as a result of a failure to perform an obligation placed on individuals by their employment contra t and job description.

 It is worth bearing in mind the recent developments with respect to a possible offence of corporate killing being introduced.  This legislation will be targeted at companies themselves.  No new burdens will be placed on companies, which already fully comply with Health & Safety Legislation.

Companies can now buy insurance in order to protect directors [Companies Act 1985  s.310(3)].  More over, directors need not contribute towards premiums.  Such insurance must be mentioned in the Annual Report & Accounts may (subject to terms) protect directors against: -

  • Civil liability for claims made against them in breach of directorial duties.

  • Legal costs and expenses involved in defending criminal actions, but not the fine or other penalty incurred.

Penalties

 Breaches of  s.2 - 6 of HSWA 74 –

 s.2    General duties that employers have to the employees. This section contains a “catch all “ requirement

 s.3    Duty of care to people other that your employees e.g. visitors and contractors.

 s.4    Duties relating to premises. Person in control of work premises must take reasonable measures to ensure Health & Safety of employees not in your employ.  This is aimed at landlords or managing agents.

 s.6   Duties of manufactures, suppliers to ensure goods are fit for purpose).

i      Summary conviction – maximum £20k fine.

ii      Conviction on indictment – an unlimited fine (but no imprisonment).

 

  1. Breaches of improvement or prohibition orders, or orders under  s.42 HSWA 74.

 (s.42 Failing to comply with a remedial court order made under HSWA ’74)

 i    Summary conviction – a maximum fine of £20k and or imprisonment of 6 months.

ii   Conviction on indictment – unlimited fine and or imprisonment of up to 2 years.

  1. Most other offences, including breaches of Health & Safety regulations.

 i     Summary conviction – a maximum find of £5k.  

ii     Conviction on indictment – an unlimited fine

Summary   - trial without jury before Magistrate / Sheriff court.

    Indictment   - trial before a jury.

Throughout criminal law, the burden of proof of guilt is on the prosecution to show that the accused committed the particular offence.  Whilst not eliminating the need for the prosecution to establish general proof of guilt, HSWA 1974, s.40 makes the task of the prosecution easier by transferring the onus of proof to the accused to demonstrate that “best” practices was being followed.  It is worth bearing in mind that Article G (2) of the European Convention on Human Rights, may throw doubt on this.

 Where an offence is committed by a body corporate, senior persons in the hierarchy of the company may also be individually liable.  Thus where the offence was committed with the consent of connivance of. Or was attributable to any neglect on the part of a director or officer of the company, that person is guilty of an offence and liable to be punished accordingly.

Every care has been taken in the preparation of this information.  However, the information given can only address the general principles involved. Our advice should be sought on any specific query, or problem your business has relating to any issue or area raised.

 The information is correct as of August, 2005.  E & O E. 

 

© 1074 Consulting, 2002 - 2007.