New regulations

New health and safety regulations generally come into force on one of two “commencement dates” each year, 6 April and 1 October. New regulations that have been enacted since LRD’s Health and Safety Law 2014 was published are highlighted throughout this booklet. They include:

• Construction (Design and Management) Regulations 2015;

• Control of Major Accident Hazard (COMAH) Regulations 2015;

• Mines Regulations 2014;

• Petroleum (Consolidation) Regulations 2014;

• Genetically Modified Organisms (Contained Use) Regulations 2014;

• Acetylene Safety (England and Wales and Scotland) Regulations 2014;

• Explosives Regulations 2014; and the European Regulation on Classification, Labelling and Packaging of Substances and Mixtures has now fully replaced the Chemicals (Hazard Information and Packaging for Supply) Regulations 2009 (CHIP 4).

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.

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). 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.

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, three directors were disqualified for between four and five years under the Company Directors Disqualification Act 1986.

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.

The TUC renewed its call for a positive legal duty on directors in its January 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 the case of 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 32).

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.

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.