SHE 10 – Making directors’ duties statutory could level uneven playing field
Some company directors who are complying with the Institute of Directors’ (IoD) and HSC’s voluntary code on health and safety want the duties outlined within it to be put on a statutory footing so that their organisation does not lose out to rival firms that may not be complying.
This is one of the most frequently-heard arguments in favour of directors’ duties, according to Mick Antoniw, a partner at Thompsons’ Solicitors.
Outlining the history of the debate for and against positive duties, which were considered by the HSE as early as 1981, Antoniw told delegates at the SHP Legal Arena that the HSE was currently reviewing the effectiveness of the voluntary approach and that the safety community was awaiting a report and analysis from the Executive on whether specific duties should be enforceable through new or amended legislation.
Speculating on what a statutory duty on directors might look like, he pointed to the most recent Private Member’s Bill on the issue, which was introduced by Frank Doran MP in January 2010. The Bill, which died a death with the dissolution of Parliament in the run-up to the general election, sought an amendment to s37 of the HSWA. Describing the Bill’s proposal as quite a modest and reasonable amendment, Antoniw highlighted the Bill’s words to this effect: “It is the primary duty of a director or body corporate to take all reasonable steps to ensure that. . . acts in accordance with the obligations imposed on it by any regulations, orders or other instruments of a legislative character relating to health and safety,” and that “any director failing to carry out this duty shall be guilty of an offence”.
According to Mr Doran, such a duty would put directors in the same position as employees of a company to ensure their actions do not put themselves, or others in danger (under s7 of the HSWA), and “remove a glaring anomaly in our health and safety laws”.
Antoniw went on to discuss potential penalties for a breach of a duty by directors, suggesting a “broad and proactive approach” encompassing a range of sanctions, designed for the objective of the penalty – i.e. that it is not so much about retribution but about changing the culture and attitude of the director and organisation and strengthening the deterrent effect.
Penalties he suggested include: fines; imprisonment; disqualification; probation and retraining; publicity orders; and suspended or part-suspended sentences.
There are many who are still against a positive duty on directors, with the most common arguments being that a change in culture is possible without a need for legal duties; that such a new law would be difficult to enforce; and that imposing such a duty is more about retribution than changing behaviour. Antoniw countered these arguments by stressing how a new law would achieve fairness between the legal status of employees and directors. Plus, he underlined, some directors themselves believe that unless the IoD code is made statutory, those who do not comply with it are gaining an unfair competitive advantage over those that are in compliance.
Whether a new duty is forthcoming however may depend largely on the nature and character of the next government, concluded Antoniw.
SHE 10 – Making directors’ duties statutory could level uneven playing field
Some company directors who are complying with the Institute of Directors' (IoD) and HSC's voluntary code on health and safety want the duties outlined within it to be put on a statutory footing so that their organisation does not lose out to rival firms that may not be complying.
Safety & Health Practitioner
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