When reinforcing the message of safety non-compliance to managers and directors, sometimes the threat of individual prosecution may be the only way to get through. But do the statistics support that position, when the lack of individual prosecutions is considered? A Freedom of Information Act request yields some interesting answers.
In this article, Paul Verrico and Eddy Steele from Eversheds Sutherland consider the latest trends in HSE prosecutions of managers, directors and officers, and what should be done to make you best placed to not become the next statistic.
Let’s start with the basics:
The Health and Safety at Work etc. Act 1974 (‘HSWA’) and subordinate legislation protects employees and third parties against risks to their health, safety and welfare arising from the undertakings of duty holders. If a duty holder is suspected to have breached one of the duties, the Health and Safety Executive (‘HSE’) or other regulator (for example the ORR and Local Authorities) can investigate and, where there is sufficient evidence for a realistic prospect of conviction and a public interest, prosecute.
Both employers and individuals can be duty holders for the purposes of the legislation:
Section 7 HSWA permits the HSE to prosecute individuals where it can be established they have not discharged their individual duty with reasonable care or where they have failed to cooperate so far as is necessary to enable a duty to be carried out safely.
Section 36 HSWA states that where the commission of an offence is due to the act or default of some other person, that other person is also liable to be prosecuted for the offence, whether or not proceedings are brought against the principal (i.e. where someone is told to do something which is patently unsafe; the person issuing the instruction can be liable);
Section 37 HSWA provides that, if a company commits a health and safety offence, then its directors or officers can be prosecuted where the offence can be shown to have been committed through the consent, connivance or neglect of the individuals subject of the prosecution. Neglect includes the idea that the individual didn’t act on information he or she should have been aware of.
The HSE has, therefore, broad powers to determine its pool of available defendants, from which directors and senior managers may find they have to extract themselves during HSE investigations after serious incidents have occurred.
The HSE compiles statistics on its prosecutions, enabling reviews of how successful it is as a prosecutor. The figures show that broadly, whilst it is very unlikely for a director or manager to be prosecuted, the chances of conviction is prosecuted are high.
In 2018-19 the HSE only brought 29 cases, securing 23 convictions under Section 37 HSWA and none under Section 36. Of the 23 convicted senior post holders, nine received custodial sentences (ranging from a suspended sentence to 10 months in prison). Of those convicted, four of the directors were disqualified for between three and seven years.
These statistics in respect of section 37 HSWA prosecutions demonstrate a lower success rate of 79% against the HSE’s 93% general conviction rate.
That said, if the HSE, after an investigation, elects to prosecute a director as well as a commercial organisation utilising the section 37 vehicle, then – statistically – the director is more likely than not to be convicted, either by way of a guilty plea or by way of a finding of guilt after trial, by judge at the Magistrates’ Court or by a jury at the Crown Court in more serious cases. Thus, whilst it is correct for Health and Safety Professionals to posit that custody could result from breaches of the law, the reality is unlikely. We are unable to trace any manager or director of a large company having been convicted of an offence in the reference period
It is trite but established safety theory to refer to the hidden Bird’s ‘iceberg’ theory costs of any serious incident – the commonly accepted figure is that for every £1 in direct costs, a minimum of £8 in indirect costs are incurred. As lawyers, our direct experience is more attuned to the terrible human costs to those involved in a major incident. These range from physical and mental disability of injured persons; grief, loss and bereavement to the families of the victims and the guilt, shame and sorrow of those who feel that they have been responsible or culpable in the facts of an incident.
Where a regulator investigates, the spectre of the potential for personal prosecution often causes sleepless nights, anxiety and fear. Until a matter is concluded, any lawyer can only point to the low statistical likelihood of prosecution but cannot guarantee that there will be no potential criminal liability. Social opprobrium can feel like a sentence in its own right. Of course, if a senior duty holder has failed in his or her employee obligations, there will likely be a HR investigation which often results in disciplinary action. Some managers find that they ‘lose the shop floor’ if workers perceive that an incident was the manager’s fault – irrespective of the reality. These consequences can rightly be emphasised to managers and directors as important reasons to take safety seriously.
The buzz words here are ‘evidenced assurance’ – directors and managers of organisations should revisit their safety management systems, and – as a matter of course – conduct periodic reviews of all their working practices. There are sector specialist guidance notes and regulations to think about when conducting any periodic review, depending on the practice areas or sector specialisms your business operates in.
You should consider:
For this article to be accurate we should have local authority eho prosecutions as well
Thanks Douglas.
We didn’t FOIA every local authority but, of course, local authorities take far fewer prosecutions than HSE – and the stats we do have compare easily against HSE’s own published statistics, which was the purpose of the article.
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