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May 14, 2013

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SHE 2013: Why a bad experience is best catalyst for changing directors’ minds on H&S

When it comes to getting directors and senior managers to take health and safety seriously, an actual incident is often the best argument.

Rob Elvin, of Squire Sanders, told the SHP Legal Arena this afternoon that the business case is all well and good, and what the law says might make people sit up and listen, but most directors will properly spring into action only after things have gone wrong. o

Rob explained: “While there have been improvements in health and safety management in the UK over recent years, incidents are still happening so the question still is: why aren’t directors taking health and safety more seriously?

“My experience suggests that they really take notice when things go wrong. The business case may seem watertight but we are continuing to see accidents and ill health, and evidence that some organisations just don’t care.

“If the business case isn’t working then you turn to what the law says. There has been a lot of discussion as to whether current directors’ duties are sufficient — in my opinion, they are. Most directors are employees so they have an express duty under section 7 of the HSWA 1974. And section 37 of the Act allows for enforcement action to be taken against senior manager if their consent, connivance or neglect caused a breach.

“With these two — and the ‘exocet missiles’ of corporate manslaughter and gross-negligence manslaughter — the law is sufficient.  There might not be an express health and safety duty on directors but what there is, is pretty close.”

Rob went on to suggest that many directors fear damage to their reputation, or to the ‘brand’ even more than they fear financial loss. “A lot of them are rather vain,” he said, “and it really does matter to them what people think of them. Boards don’t want the public or their employees thinking badly of them.

“If something goes wrong and employees are interviewed by the enforcing authority, the board doesn’t want them to say bad things.”

He gave the example of Enterprise Inns, which, a few years ago, was prosecuted over the death of one of its tenant pub landlords by carbon-monoxide poisoning. The landlord was new, having taken over after the previous landlord, who had been Enterprise’s tenant for some 20 years, died. Under the terms of the previous landlord’s lease Enterprise was not responsible for inspecting and maintaining gas systems.

The new tenant, however, was on a short lease, in which case Enterprise did have a duty in this respect. The HSE’s investigation after the fatal incident revealed a further 439 sites across the Enterprise estate had gas appliances that were “at risk”.

Rob explained: “The company had completely misunderstood the risk profile and its legal duties. As a result, a person died and Enterprise was fined £300,000. But the board was enlightened. They brought people in to review the whole business and, in the following two or three years, they completely turned their health and safety management around.

“Sometimes, things going wrong really is your best chance to change perspective.”

He concluded: “The business case, the law and guidance — all of these together mean there shouldn’t be any doubt in directors’ minds. But sometimes, something still needs to go so wrong that the penny really and truly drops.”

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