As a director can I be prosecuted for health and safety failings in my company? Yes.
Company directors have many duties. One of those duties is the responsibility to ensure the health and safety of those in the company’s workplace. This duty is not limited to the company’s employees, it extends to other people attending the workplace such as contractors, suppliers and members of the public. An individual director, company secretary or manager can be held criminally liable for health and safety offences committed by their company.
This can occur in circumstances where the offence in question has been committed with the consent or connivance of the individual or when the offence was attributable to any neglect on the part of the director or manager. In this situation, consent, connivance and neglect have the following meanings.
Consent means that an individual knew of the circumstances which created the risks that caused the health and safety failure and either permitted the situation to continue or encouraged it.
Connivance means that an individual knew of the circumstances which created the risks that caused the health and safety failure and turned a blind eye.
Neglect means circumstances where an individual had a duty to ensure health and safety in the workplace and showed no care as to whether a risk was created, or harm was caused.
Individuals can be prosecuted under criminal law for health and safety offences by the Police, a regulator, the Health and Safety Executive or a local authority.
A key thing to remember where health and safety offences are concerned is that there does not need to have been any harm caused to anyone. The creation of a risk is enough for an offence to be committed.
A recent example of this is the prosecution of Associated Metalmasters Limited, an engineering company in the West Midlands. In this case both the company and its Managing Director were prosecuted. The outcome of the case was reported on 14 September 2023. Health and Safety Executive (“HSE”) inspectors found the company had failed to put in place appropriate precautions to control the exposure of mild steel welding fumes from the metal inert gas welding process taking place at the site.
The company had previously been issued with notices requiring the company to improve its metal inert gas welding processes. The company had failed to sustain its compliance with the requirements of the notices. The company’s Managing Director knew about the notices and was in control of the process.
Whilst no immediate harm was caused to anyone in this case, both the company and the director pleaded guilty to the offence charged, were convicted and fined.
The stakes are high for directors and managers in these circumstances. If the case is serious, an individual can be sentenced to imprisonment. Usually when an individual is convicted of a health and safety offence, they will also be disqualified from being a director.
Leaders should have a strong and proactive approach to health and safety. Policies, risk assessments and systems of work should be reviewed regularly and health and safety should always be an important feature on the agenda at board meetings.
Sewell Law has experts in advising and defending companies, directors and managers who find themselves the subject of investigation or prosecution and can guide you through what can be an extremely stressful and challenging time.