Omicron is here. What does that mean for employers?
The built environment presents health and safety risks like no other sector. Whether it be the risk of falls from height, hazardous substances, trapped by items collapsing or overturning, fire or moving vehicles there are a wide range of hazards that need to be managed from the outset. Directors can be held personally liable when health and safety duties are breached. In this blog we explore the scope of personal liability for directors in the built environment.
All workplaces operating in the built environment are covered by health and safety laws. The nature of your business will determine what specific range of laws apply to your business.
In short, yes. A traditional enforcement agency, such as the Police, a regulator, such as the Health and Safety Executive or your local authority may take action against you under the criminal law. There are a number of ways in which a director can be personally liable for offences committed by or in connection with their company. Perhaps most commonly, where a health and safety offence is committed by a company with the consent, connivance or is attributable to any neglect on the part of any director, manager or other similar officer in the organisation, then that individual, as well as the organisation can be prosecuted, section 37 of the Health and Safety at Work etc. Act 1974 (HSWA). Importantly, no one actually needs to be harmed for an offence to take place under the HSWA the presence of the risk of harm will suffice to give grounds for a criminal investigation.
A health and safety investigation is always disruptive to the operation of a company and the reputation of their directors and senior mamagers. In recent years there has been a noticeable increase in prosecutions brought against directors and other senior managers. For offences committed on or after 12 March 2015 under sections 2 to 6 of the HSWA the maximum penalty in the magistrates’ court is an unlimited fine or imprisonment for a term not exceeding 6 months or both. In the Crown Court, the maximum penalty is an unlimited fine or imprisonment not exceeding two years or both. There is also evidence to suggest that the rate at which individual directors are being sentenced to prison for health and safety offences has increased since the health and safety sentencing guidelines were introduced in February 2016. If an individual is successfully prosecuted for a health and safety offence this can also lead to the disqualification of that offender from being a director, or taking part in the formation or management of a company for a period of up to 15 years (Section 2 of the Company Directors Disqualification Act 1986).
Firstly, you should take steps to familiarise yourself with the regulatory obligations that apply to your business and understand your specific role in managing health and safety in your business. Secondly, you need to be able to demonstrate that you are actively thinking about, managing and controlling risk in the workplace. Thirdly, you must implement a robust governance process to ensure the commitment to delivering a safe workplace is achieved at all levels of your business. Fourthly, you should ensure that you set the right tone at the top of your business by leading on core values and develop a culture of open communication on health and safety issues.
Melinka Berridge is a partner in the regulatory team. She acts for directors and senior officers accused of committing health and safety offences. She also advises on what constitutes effective leadership of health and safety in their organisations. She has a particular interest in health and safety management in the leisure & hospitality sectors.
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