Directors’ duties



Although there is a positive duty on companies and public bodies to ensure, so far as reasonably practicable, the health, safety and welfare of all its employees, surprisingly no such positive duty is owed by the directors or senior managers of companies.


The TUC has been campaigning for an express positive duty to be owed by directors and senior managers for many years, most recently in its 2014 publication, Health and safety time for change: directors’ duties – the need for action.


As the TUC points out, “an 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”. 


The current law falls far short of a positive duty. Under section 37 of the HSWA, where a health and safety offence has been committed by an employing organisation with the “consent or connivance” of or due to any “neglect” on the part of any director, manager, secretary or other similar officer, or anyone who has been holding themselves out as having this kind of authority, that person can be found guilty of the offence, alongside the employing organisation. 


“Consent” and connivance” imply both knowledge of the material facts and the taking of a decision based on that knowledge. “Neglect” does not necessarily require knowledge of the facts giving rise to the offence. It can include a situation where the director should have been aware of those facts and was not. Ignorance of the law is no defence.


HSE guidance says prosecutions should be brought when there is a “realistic prospect of conviction” in the “public interest”. The HSE focuses on the individuals who were responsible for the risk and best placed to control it – people in positions of real authority, with power and responsibility to decide corporate policy and strategy. Enforcement decisions are expected to take into account the nature and extent of the breach and the resulting risk. Here are some of the factors the HSE says it expects to take into account: 


• Did the individual have effective control over the matter?


• Did they have (or should they have had) knowledge of the circumstances surrounding the event?


• Did they fail to take obvious steps to prevent it happening?


• Had they received any previous advice/warnings? 


• Was there any previous advice to the employer?


• Is responsibility shared between more than one management level? 


A Freedom of Information request by law firm Clyde & Co has established a significant rise in the number of directors and senior managers being prosecuted by the HSE – a trebling from just 15 to 46 prosecutions in the year to March 2016. However of these, only two were disqualified from being a director – one for two years and one for ten. Almost all the cases involved injury or death, and many were in the construction industry. 


Sentencing Council guidelines for health and safety and corporate manslaughter offences (see page 35) say that courts must consider whether to disqualify an offender from being a director for a maximum of 15 years (in the Crown Court) or five years (in the Magistrates’ Court). But the TUC says that there is no guidance on when this should happen – a major omission in its view. “Hitting irresponsible directors is one of the biggest deterrents going”, says TUC head of health and safety Hugh Robertson. Directors are the most powerful individuals in a company. They decide on the resources to put into safety. They make or authorise strategic decisions on staffing, training, instruction, safety equipment, price tendering and the prioritising of safety within the organisation. Unions believe that without the strong message that comes from a positive legal duty and properly resourced enforcement, many companies will continue to breach health and safety laws. 


There have been calls for a positive duty on directors by unions and other safety campaigners for many years, and even a recommendation by a government-commissioned inquiry by Baroness Rita Donaghy – One death is too many. But successive governments have failed to act, preferring a voluntary approach.


The TUC says that just disqualifying directors after a conviction is not enough. Although it may help prevent these individuals from continuing to break the law, the important issue is changing attitudes before an incident happens: that is why a specific duty is needed. The TUC wants a new general duty under the HSWA, backed up with an Approved Code of Practice spelling out exactly what directors should do. A new duty, says the TUC “would be the biggest driver yet in changing boardroom attitudes towards health and safety”.