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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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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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