Directors’ duties


Individual directors do not have explicit legal duties under the Health and Safety at Work Act 1974 (HSWA). Instead, duties are generally imposed on “employers”, meaning an organisation. Only Section 37 of the HSWA, which sets out the circumstances in which a company director can be prosecuted, indicates that there is 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.


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). However unions want the HSWA to be 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.


For example, figures released by the HSE following a freedom of information request showed that 43 directors and/or senior managers and company secretaries were prosecuted under section 37 of the HSWA in 2010/11. Following these prosecutions, just three directors were disqualified for between four and five years under the Company Directors Disqualification Act 1986. Although new Sentencing Council guidelines on the sentencing of those who break health and safety laws (see page 35) say that courts must consider this, the TUC says that there is no guidance on when that should happen – in its view a major omission. “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 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 laws.


The TUC renewed its call for a positive legal duty on directors in its 2014 publication, Health and safety time for change: Directors duties — the need for action. It explains that although there is a positive duty on employers to ensure the health, safety and welfare of employees, as far as is reasonably practicable, 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 most workplaces, the employer is not an individual but a company or public body.


The TUC points out that 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.”


Section 37 of the HSWA says a director can be prosecuted if an offence committed by the company or other body “is proved to have been committed with the consent or connivance of, or to have been attributable to, any neglect on the part of any director, manager, secretary or other similar officer of the body corporate”. This means that 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 no responsibility cannot be prosecuted, unless you can show that they individually did something which specifically contributed to a death or injury.


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) (see page 19).


The TUC says that just disqualifying directors after conviction, which may help prevent these people from continuing to break the law, is not enough. The important issue is changing attitudes before an incident happens; that is why a specific duty is needed.


The TUC also highlights HSE figures published in 2010 showing that 35% of companies have boards that never have health and safety on the agenda, despite several 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.