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May 16, 2013

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SHE 2013: Are individuals being increasingly targeted in health and safety prosecutions?

If you have the word ‘manager’ in your job title, you might want to think about adding ‘underling’ in brackets on your business card if you don’t want to find yourself in court on a health and safety charge.

In an entertaining presentation to the SHP Legal Arena this morning (16 May) solicitor Ron Reid, from Shoosmiths, said directors and senior managers are more in the firing line than ever when it comes to health and safety prosecutions — but he rebuffed the widely-held belief that there is now a trend towards prosecuting individuals.

Citing some revealing statistics, Ron said immediate or suspended prison sentences have been handed down to just 68 individuals in the last five years. Since 1975, there have only been 42 convictions for gross-negligence manslaughter — 35 of those against directors.

That being said, the introduction of the Health and Safety (Offences) Act came five years ago has seen some significant changes. Ron explained: “More offences are now imprisonable, penalties have increased, and the public-interest test has been used more often. A more serious offence lowers the bar for prosecutors — if an offence is imprisonable, then there is an inherent risk to the public.”

He also pointed out that the HSE’s enforcement policy now requires inspectors to consider the management chain and the role of individual directors, meaning there is closer scrutiny of managers in cases of health and safety failings. “Now, we often see companies and individuals being prosecuted alongside each other, or sometimes just the individual instead of the company.”

In the last few years, Ron advised, prosecutors have been “pushing the envelope” of what, or who actually amounts to a senior manager. Under section 37 of the HSWA 1974, for such a person to be charged it must be shown that their consent, connivance, or neglect contributed to the failing.

Ron explained: “Neglect is the tricky one. Directors are not under a general duty to control all a company’s affairs. They can delegate. But neglect requires the identification of a duty of care owed and a failure to observe that duty by the individual concerned.”

He gave the example of R v P, in which a child was taken into the workplace — a paper manufacturer — where there were frequent movements of forklift trucks, transporting huge reels of paper. One of the trucks stopped suddenly and, because the reel at the top wasn’t properly secured, it fell off on to the child and killed her.

The MD of the company said he didn’t know about the practice of not securing the reels — even though he was the one who signed off all the policies, etc — but the court held that he ought to have known, and so he was convicted.

But section 37 is not the only concern for individuals, Ron reminded the Legal Arena audience. “Section 7 of the 1974 Act doesn’t generally require seniority — it is not good enough for employees to do nothing and just blame the company, or managers.

“There is a limitation on the liability of managers. In R v Boal (which involved a breach of the old fire regulations), a book shop and a manager were prosecuted. The individual’s legal team initially didn’t pick up on the fact that he was not a senior manager. Subsequently, the Court of Appeal said the provision was only intended for those in a position of real authority, and not underlings. “

The moral of the story, said Ron, is “be careful about your job title, job description and responsibilities. If you are at the coalface, you are at risk even if you are not the director responsible for health and safety.”

He concluded with a reminder of the penalties individuals prosecuted for a work-related health and safety offence can face: life imprisonment — or an average of at least four to seven years — for a conviction of gross-negligence manslaughter; an unlimited fine and/or imprisonment for a section 37 offence; up to two years on prison for breaching a Prohibition Notice; and disqualification as a director for up to 15 years.

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