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A new duty for directors?

Yet again the call for the introduction of a positive legal duty for directors is gathering momentum. By Madeleine Abas

Would this materially improve health and safety in our industry or is it simply a cry of frustration from those that want to see more prosecutions of those who fail to prioritise safety in their organisations?

Sections 2 and 3 of the Health and Safety at Work etc Act 1974 place onerous, non-delegable duties on an employer to ensure the health and safety of its employees and third parties, in so far as is reasonably practicable.

Section 37 extends the company’s criminal liability for breaching the Act to a director or senior manager, making them liable to personal prosecution, if they either consented to or connived with the commission of the offence, or it must have been due to his neglect that the offence occurred. 

‘Consent’ is proved if the director knows that something should be done to reduce a risk in the operations of his company, but he directs that things should carry on as they are. ‘Connivance’ catches those who turn a blind eye to a known risk.

Neglect is broader and can be made out where a director ought to have known of an unsafe practice within his company.

HSE operational guidance was changed some time ago to task its inspectors with considering, in every case, whether a senior officer of the company should face investigation and prosecution.

For those who face an investigation, it can be a stressful and drawn out process, adversely affecting their health and relationships, both personal and professional. They might have faced arrest and detention at a police station for several hours. They might have had their office and home searched for evidence. It can be a humiliating experience, even for the most hardened of characters.

For those convicted of the offence under Section 37, the penalties are significant.  Two years’ imprisonment, a fine, and disqualified from acting as a director for up to 15 years.

This can all happen under current legislation. Directors who have ignored or dismissed real risks in their business can be dealt with, and meaningfully. Despite this, the proposal to introduce a new duty, which requires directors to take reasonable steps to ensure, proactively, the safety of their operations is back on the political agenda.

How such a duty could be made meaningful and result in a positive contribution to workplace safety, is however difficult to see. Companies come in all shapes and sizes. Directors contribute different skills, and possess different backgrounds. Some are part time, non-executive or nominees. Some are spouses, playing no active role in the company’s day to day activities or decision making.

Would they all be subject to the same duty?  Would there be a sliding scale in expectation? If the duty was to rest only upon designated directors such as the ‘director of health and safety’, who would be prepared to fill that position? Even in today’s climate, such positions would be hard to fill!

And what would a director have to do to meet a duty of taking ‘reasonable steps’?  Presumably, delegating safety issues to someone with more knowledge and experience, such as a safety professional or senior operational manager would automatically fulfil the requirement to have taken ‘reasonable steps’. So, what would be the point?

The more fundamental objection from some quarters is that the duties which rest upon employers are, and must remain, non-delegable. The introduction of personal positive duties on directors will undermine the current position by potentially creating a ‘get out’ for employer organisations, blaming the failings of the individual members of the board.

While the proposal to introduce a new positive legal duty on directors to take reasonable steps to ensure the safety of their company’s activities might appear, at first blush to be a sensible step, it would appear to be unworkable, without a lot more thought.

The reality of the position is, perhaps, that those calling for this duty simply want to see the HSE make more use of Section 37, and their existing armoury of investigative and prosecution powers.

Madeleine Abas is a senior partner at Osborn Abas Hunt