Recent years have seen a marked increase in the number of prosecutions brought against individual directors and managers for alleged neglect of duty in health and safety matters:
- Who is in the HSE’s sights?
- What level of management is liable to be targeted?
- What is the test for criminal liability?
- Does the personal duty of care turn on corporate non-compliance?
- Do individuals face the reverse burden of proof?
- How best can managers avoid prosecution?
Here Mark Scoggins, Solicitor Advocate, Fisher, Scoggins, Waters LLP gives us his 5 top tips on how to protect yourself.
1.Think very carefully before you accept a job which includes “Director” in its title.
If the post does not carry with it your appointment to the statutory board, you make yourself a target for regulators. Those who tote the “Director” label face a much tougher time with the HSE, and greater risk of prosecution, than those with more humble titles such as “Production Manager”.
2.Take a close, personal, competent and contemporaneously-recorded interest in health and safety performance.
Regulators single out for particular scrutiny senior managers who cannot demonstrate active concern for the safety of employees and others potentially affected by the carrying on of the business. Make a record of your relevant actions such as site tours and safety inspections, response to notified incidents, and your knowledge of relevant duties. Formal training helps too: there are many courses available for those in senior supervisory positions.
3.Take positive and if need be firm action to address identified downward trends.
Managers who cannot demonstrate a prompt and proportionate response to safety incidents, deteriorating AFR and LTI figures, or increasing numbers or seriousness of RIDDOR-reportable events, are at risk of being accused of putting the business in breach of its legal obligations through neglect of their own personal duty.
4.Take care how you frame your response to requests for additional spend on safety measures.
All too often, the reply from management is a refusal, and focuses largely if not entirely on the initial financial cost of a requested upgrade rather than on the balance of benefits it may bring (both in improved safety and in collateral cost saving) over its expected service life. Look at the wider and longer-term picture, and keep in mind that the test for lawfully declining to lay out extra money is that the benefit conferred would be “grossly disproportionate” to the cost, time and trouble involved: a very high bar to clear.
5.If you leave the business, keep a copy of the evidence which shows that you took safety seriously.
When you retire or move on, do not rely on your former employer to preserve your “defence case”. There is no time limitation on criminal prosecution for breach of health and safety duties: chickens may come home to rest decades after your last involvement, as shown by the recent conviction of former Sheffield Wednesday club secretary and safety officer Graham Mackrell over the Hillsborough disaster.
Written by Mark Scoggins, Solicitor Advocate, Fisher, Scoggins, Waters LLP. for The SHE Show South, Tuesday 2nd July 2019, DoubleTree by Hilton, MK Dons Stadium, Milton Keynes
Please note, the views expressed by the original article author are theirs alone and do not necessarily represent those of Washingtondowling Associates Ltd or The SHE Show and therefore we take no responsibility for the content or accuracy of this post.