Signs of shift in prosecution policy from employees to those at the top
There has been a sharp drop in the number of prosecutions of employees under section 7 of the HSWA in the last five or six years, according to figures collated by the HSE from its prosecutions database.
The statistics, which, the HSE underlines, may not be 100-per-cent accurate, were provided for Lee Hughes, an associate solicitor at Pannone, after he made an inquiry under the Freedom of Information Act. They show that the number of s7 prosecutions since 2000/01 peaked in 2005/06 and 2006/07, when 26 and 37 individuals were prosecuted, respectively. Since then, the numbers have tended to decline, with prosecutions in 2010/11 totalling just eight – the lowest number in the 12-year period – and 13 recorded in 2011/12.
Interestingly, the fall in s7 prosecutions has coincided with a rise in the number of senior managers and directors prosecuted under s37 of the HSWA. These figures, also reported back to Lee Hughes under the FoI Act earlier this year, showed that convictions under s37 soared from a mere five in 2005/06 to 35 in 2010/11.
The divergence in s7 and s37 prosecutions would appear to reflect a greater degree of enforcement on those at the top, as opposed to those at the bottom. Writing in his blog, Hughes commented: “This shift in focus, if there has been one, is all the more surprising when one considers that employees have a positive duty under the Act ‘to take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions at work’.
“Those in positions of real authority do not have such a duty. Directors can only be prosecuted where an offence by their company is proved to have been committed with the consent or connivance of, or to have been attributable to, any neglect on their part as well.”
Commenting on the figures, a TUC spokesperson said: “It is quite right that the HSE should concentrate on prosecuting those who direct the workplace as they have the primary responsibility for controlling risk. But the real issue is the overall decline in prosecutions in general and the need for more corporate responsibility, such as a specific legal duty on directors.”
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