1. Responsibilities - Business Owners and Directors
This is where the buck stops. In the bad old days, before the 1974 Health and Safety at Work Act (HASAW), it wasn’t uncommon for workers to carry the can for accidents at work.
In those days, legislation concentrated on ensuring that equipment being used was safe, rather than ensuring that employees were aware of how to work safely. Businesses and other organisations were not legally obliged to take responsibility for occupational health and safety.
Under HASAW, business owners and directors have overall responsibility for the health and safety of their workers. Their duties are qualified by the phrase “so far as is reasonably practicable”. This phrase has been tested in court many times and involves the balance between risk and cost. This is generally taken to mean that if the risk is high and the cost is low, then it is reasonably practicable to do something; if the cost is high and the risk is low, then it is not. The original premise of HASAW was that safety is not a matter for bargaining, and this phrase does somewhat undermine this principle.
What Business Owners/Directors Must Do
Owners and directors (called BODS from here onwards to avoid repetition) are often busy people who must make sure that their organisations make a profit. No profit = no business. However, the law requires them to “ensure” the health and safety of their workers. This doesn’t mean they have to do this in person and usually BODS will delegate responsibility to others: the Competent Person, safety committee, senior managers etc. But – and this is very important – delegation does not mean their responsibilities are then over and that they have discharged their legal duty. They MUST make sure that the management of health and safety in their organisation is fit for purpose and correctly implemented.
This means BODS must regularly discuss health and safety, monitor reports and take action when necessary. They must be supportive of their health and safety delegates and ensure sufficient budgets are in place to implement their health and safety policy. It’s no use having an exemplary Policy in place if there are no means of carrying out the arrangements written in it.
To summarise, BODS must satisfy themselves that the Health and Safety Policy and accompanying management system is appropriate, fit for purpose and correctly implemented on an ongoing basis.
Appointing a Competent Person
Far too often, BODS simply dump the role of CP on an existing employee, e.g. the Office Manager, the Foreman, the Warehouse Manager. This is a recipe for disaster, which is obviously neither healthy nor safe.
If “reasonably practicable”, we recommend that a new person is recruited for the role. Alternatively, involve HR in re-jigging current job roles to see whether a CP’s duties could be successfully fitted into an existing work position without causing undue stress to the successful candidate.
Whichever approach is adopted, the BODS must use the Health and Safety Executive’s definition of “competence” when considering individuals for the role. In practice this means the CP must be able to 1) implement the arrangements detailed in the Health and Safety Policy, 2) be the first contact for all H&S queries, 3) ensure thorough, complete and timely records are kept, 4) record and investigate accidents and near misses, 5) know where to find required information.
BODS must be prepared to provide training if necessary, especially for CP's appointed from within the existing workforce.
How to Discharge the Legal Duties
We recommend that BODS adopt the following approach:
- Hold regular (at least monthly) meetings where health and safety is a standing agenda item
- Ensure there is health and safety representation at Board level
- Analyse statistics quarterly (accidents, incidents, work-related illnesses etc)
- Review the Policy annually (or following an accident/incident which requires a change of Policy) to make sure it remains relevant to the organisation’s activities
- Ensure there is always at least one owner/director available to health and safety representatives, e.g. the Competent Person
Legal Liability
From the HSE website:
If a health and safety offence is committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the organisation, then that person (as well as the organisation) can be prosecuted under section 37 of the Health and Safety at Work etc Act 1974.
Recent case law has confirmed that directors cannot avoid a charge of neglect under section 37 by arranging their organisation's business so as to leave them ignorant of circumstances which would trigger their obligation to address health and safety breaches.
Those found guilty are liable for fines and imprisonment. In addition, the Company Directors Disqualification Act 1986, section 2(1), empowers the court to disqualify an individual convicted of an offence in connection with the management of a company. This includes health and safety offences. This power is exercised at the discretion of the court; it requires no additional investigation or evidence.
Individual directors are also potentially liable for other related offences, such as the common law offence of gross negligence manslaughter. Under the common law, gross negligence manslaughter is proved when individual officers of a company (directors or business owners) by their own grossly negligent behaviour cause death. This offence is punishable by an unlimited fine and a maximum of life imprisonment.
Under the Corporate Manslaughter and Corporate Homicide Act 2007 an offence will be committed where failings by an organisation's senior management are a substantial element in any gross breach of the duty of care owed to the organisation's employees or members of the public, which results in death. The maximum penalty is an unlimited fine, and the court can additionally make a publicity order requiring the organisation to publish details of its conviction and fine.
Health and Safety Myth
Business owners and directors must have a clear understanding of their responsibilities and how to discharge them; below is an example of misinterpretation of these responsibilities.
A hotel guest was unhappy that the hotel had removed the security door chains from their hotel rooms, preventing the door from being locked from the inside. There was still a lever style handle that locked the door, but the guest felt this could easily have been opened by a child, allowing the child to leave the room. The hotel stated that due to new Health & Safety laws, the chains had to be removed as staff need to be able to get into the rooms in case of an emergency.
There is no requirement for safety chains to be removed from the doors in hotels under Health and Safety legislation. The organisation may have taken the decision to change their policy in order to ease access to the rooms in an emergency, but are wrong to suggest that this is a requirement under health and safety legislation.