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Personal liability in respect of Health and Safety Offences
15 January 2009
Following swiftly on from the corporate manslaughter
legislation, the Health and Safety (Offences) Act 2008 is due to
come into force today, 16 January 2009. The new Act increases
penalties for breaches of health and safety laws, giving the courts
greater sentencing powers and in particular, making imprisonment
available for a much greater range of health and safety
offences.
Accordingly, prison sentences can now be imposed in the
following circumstances:
- If an employee is convicted under Section 7 of the Health and
Safety at Work Act 1974 for failing to take reasonable care in
their work, to ensure the health and safety of themselves or
others. This offence has been used by the Health and Safety
Executive to prosecute a range of employees, including
managers.
- If a director, manager, secretary, or other similar officer of
a body corporate commits an offence under Section 37 of the Act.
Section 37 makes it an offence for such individuals to consent to,
or connive in, any breach of health and safety law, or if any
breach of health and safety law is shown to be attributable to
their neglect.
- If, without the benefit of corporate status, an individual
employer operates a business in breach of health and safety law,
for example, as a sole trader.
A number of prosecutions are brought each year against
individuals in both the public and private sector. The courts now
have prison sentences available to them and in the worst cases,
against a background of a fatality or serious injury, might well
consider custody.
The case of R v P in 2007,
which involved the prosecution of a managing director, highlighted
the importance of senior officers being aware of any health and
safety responsibilities which fall to them, and managing them
appropriately. The court noted it was not necessary for the accused
to actually know of the material facts that led to the breach. It
was sufficient for the prosecution to prove that the accused should
have been, by reason of the surrounding circumstances, put on
enquiry so as to require him to check that relevant safety
procedures were in place.
Senior management are urged to consider the health and safety
risks generated by their businesses, ensuring effective procedures
are in place to identify and manage such risks. The board of any
corporate body is advised to consider the recent Health and
Safety Commission and Institute of Directors Guidance, which sets
out leadership actions for the board and directors.
Whilst the Act imposes no new regulatory burdens, the potential
consequences for those prosecuted for failing to comply with
existing legislation, are now more severe than ever.
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