Directors’ duties

Individual directors do not have explicit legal duties under the Health and Safety at Work Act (HSWA). Instead, duties are generally imposed on “employers”, meaning an organisation. Only Section 37 of the Act, which sets out the circumstances in which a company director can be prosecuted, imposes an implicit duty on directors to take action if they are aware that their company is committing an offence and are aware of reasonable and practicable steps that can be taken.

Unions want the HSWA amended so that inspectors can serve improvement notices on directors, with prosecution under Section 37 if they fail to comply. At present very few cases are brought each year under section 37. Directors are the most powerful individuals in a company and decide on the level of resources put into safety. They make decisions on staffing, training, instruction, safety equipment and the priority given to safety within the organisation. Unions believe that without such legal duties, many companies will continue to breach health and safety law.

In 2007, the Court of Appeal confirmed that it is not necessary for a director or senior manager to be aware of the circumstances that resulted in the company committing an offence in order to be prosecuted for neglect under Section 37 (R v E [2007] EWCA Crim 1973).

In February 2013, the TUC published Health and safety time for change — A trade union manifesto for reclaiming health and safety at work. This sets out ten key demands, including a new positive legal duty on directors.

It explains that although there is a positive duty on employers such as companies and public bodies to ensure, as far as is reasonably practicable, the health, safety and welfare of employees, there is no such duty on the directors of companies. While in some cases individual managers are also prosecuted, most prosecutions for breaches of health and safety laws are taken against employers. And in the case of most workplaces, the employer is not an individual but a company or public body.

As the TUC points out, “that organisation really only exists as a piece of paper. You cannot put a company or local authority in jail if it kills someone. Also it is not companies that make decisions — individuals do.”

It explains that the present law means, in effect, that a director can only be prosecuted for something they have done, or if they have neglected to carry out a duty. So while it may be possible to prosecute a director who is given responsibility for health and safety or who has specific duties that relate to safety as part of their role, directors who choose to take on no responsibility cannot be prosecuted unless it can be shown that they specifically did something which contributed to a death or injury.

This is more likely to be able to be shown in small organisations, where directors have a day-to-day involvement in operational issues, than in large organisations, where the role of directors is strategic.

If a death takes place a director can be prosecuted for manslaughter, but only if they are shown to have been criminally negligent. Such prosecutions are extremely rare and, again, can usually only be used against directors of small companies.

HSE figures show that 35% of companies have boards that never have health and safety on the agenda, despite eight years of voluntary guidance stating that they should do so. And only 31% of boards set targets for health and safety — another recommendation within the voluntary guidance.

The current law means that if a board of directors refuses to have any involvement in health and safety, however bad the record of the company, there is almost nothing that can be done to force them to take responsibility beyond disqualification (which is also almost never done).

The manifesto can be found on the TUC website at: www.tuc.org.uk/tucfiles/531/TUC_Health_and_Safety_Manifesto_Time_for_Change.pdf