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January 20, 2010

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MP seeks positive H and S duties for directors

A Labour MP has introduced a Bill to amend the HSWA in respect of the liability of company directors.

At the first reading of his Health and Safety (Company Director Liability) Bill in the Commons on 19 January, Frank Doran MP said that while directors can be prosecuted under s37 of the HSWA for failing to carry out duties in relation to health and safety, prosecutors are hampered by having to prove that a director was aware, or should have been aware, that an offence had been committed.

He added that the responsibilities placed on directors by s37 have been “very narrowly interpreted by the courts” and that by deciding not to place specific safety responsibilities on directors, companies can easily avoid prosecution.

But Gary Lewis, senior associate at law practice Hammonds, said he expects the Corporate Manslaughter Act to lead to more prosecutions of directors under s37 of the HSWA “as a by-product of the wider investigation involving scrutiny of the conduct of directors and senior managers in the management chain”.

He told SHP: “While the Bill seeks to impose a positive duty on directors to secure compliance with health and safety legislation, implying that s37 is a default provision — that is not the case. Section 37 is being used more and more and is now bolstered by a term of imprisonment as a result of the Health and Safety (Offences) Act.”

Yet, conversely, in her report on construction deaths, which recommended that positive duties be imposed, Rita Donaghy suggested the impact of both the Corporate Manslaughter Act and the Offences Act will be weakened by the lack of a legal duty spelling out the precise responsibility of a director to ensure their company adopts effective health and safety mechanisms.

The HSE is assessing the effectiveness of the voluntary approach and is due to advise ministers in the next couple of months on whether statutory duties should be introduced. The Government is expected to publish its response to the Donaghy report in the next few weeks.

The Bill is due to be read a second time on 23 April.

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