This month’s offering of news is very seasonal with a bonkers conkers competition, information on safe preparation for bonfire night and a reminder on the simple measures you can take to avoid slips and trips in the workplace, which are all the more likely with the autumnal rain that seems to have set in for the next few months. There may also be darker days to come for directors, with the long running debate on directors’ duties not dampening.

Many argue that directors need legal duties to ensure that health and safety is addressed at management and Board level. While the established HSE mantra of “good health and safety is good business” has worked in influencing some to embed health and safety into the management and organisational culture, others have been slower to follow, seeing health and safety as a bureaucratic, costly and unnecessary barrier to business.

In October 2007, Judith Hackitt, HSC Chair, launched joint HSE and Institute of Directors Guidance for Directors as one measure in a three pronged approach to encourage effective health and safety leadership. The other strands of this strategy were the issuing of updated guidance for inspectors to clarify their powers and the powers of the Court to disqualify convicted directors and the introduction of legislation to more effectively hold directors to account.

In her speech, Ms Hackitt talked about her first experience of employment and her vision for the future where;

“all lost time accidents and potentially serious incidents were a matter for the Board and that every employee in that organisation would be formally appraised on their commitment to health and safety. To progress in that organisation it was clear that you had to show health and safety leadership. This is what board leadership on health and safety has to look like when it’s put into practice.”

But has this been achieved?

Some say that the existing legal framework is sufficient to hold Directors to account and that alternative non legislative measures should be utilised rather than adding to the ever increasing health and safety legislative landscape.

However, some remain convinced that further regulation is needed, that the existing legislative powers are not being applied coherently by the Courts and that a “stick” to focus directors’ minds has to be applied. For example:

• The average penalty per conviction in 2007/08 was £12,896 (excluding fines of £100,000 and above the average penalty is £7,809.)

• Between 1 April 2006 – 28 February 2009 only 30 out of 68 fines for work related deaths above £100,000 were greater than 1% of the offenders’ annual profits.

• The largest health and safety fine imposed to date in the case of Scottish Transco for four fatalities was £15 million (less than 1% of the company’s annual turnover).

It is argued that despite the Health and Safety (Offences) Act 2008, which has given the Courts the ability impose much larger fines and prison sentences, it will take some considerable time to change the culture of the Courts who have been traditionally lenient in imposing penalties.

What is clear is that under the current system small businesses are getting a rough deal. Primarily those Directors who are imprisoned for breach of health and safety legislation or manslaughter have been from small businesses or the Director is a sole trader. Therefore, Directors in the biggest companies seem to be untouchable.

HSE have committed to reviewing this issue only when the final evaluative report of the three pronged approach is submitted to them at the end of 2009. So Directors’ days of relative immunity may be numbered. We will keep you updated.

 

In this issue:

 

Stop Press! - consultation launched on guidelines setting out approach to penalties for corporate manslaughter and health and safety offences which cause death

The Sentencing Guidelines Council (SGC) has just published its draft guideline on sentencing in corporate manslaughter and health and safety offences which cause death. More...