Duties for Health and Safety placed on Directors

Changes in the Guidance

Many safety practitioners within the industry have tried to highlight the need for visible and personal leadership of health and safety. It should, it is argued, be driven down from the top of any organisation with collective buy-in and involvement from executive directors. The ISO 45001 global accredited management standard provides useful guidance in relation to directors’ duties surrounding health and safety.

The ISO 45001 on Leadership and Commitment brings a significant change from its predecessor, the OHSAS 18001, as it is no longer enough to allocate the health and safety functions and accountability to a single named person and all directors have to sign up to ultimate responsibility for the success of health and safety within the business.

Furthermore, having a Health and Safety Policy and Procedure in place is not enough to satisfy the duty. Directors must actively ensure that the policy is implemented and engrained within the business, that systems in place are working and improvements are continuously taking place within the organisation.

‘Hands-on’ Directors

The changes suggest that directors now need to be taking more steps and having a more hands-on approach than before when it comes to health and safety within the business.

Keoghs was instructed to defend a large recycling company following the fatality of an employee within the workplace. CCTV footage showed the employee frequently accessing an unsafe zone via a broken gate. The prosecution alleged that directors had hands-on roles within the company and were visible on the CCTV footage working around the broken gate. It was argued that the directors had a duty to take action to repair the gate. Subsequently, the directors and Health and Safety Officer faced charges of gross negligence manslaughter. The CCTV footage of the directors on site was a key part of the prosecution’s evidence. It was, of course, very much to their credit that the directors went out to see the area and speak to employees although their very presence was used as evidence against them to demonstrate their knowledge of the conditions that were said to be unsafe. In reality, we can see that directors who try to do the right thing and take a hands-on role may thus be at greater risk of individual prosecution than an office-based director when something goes wrong.

Directors as Role Models

Furthermore, as demonstrated by the case above, the way that directors conduct themselves on site is extremely important. Within the HSE’s own publications and guidance, the importance of leaders being role models for employees within the company is recognised and encouraged. We would recommend that directors not only intervene if they see something that does not look right, but actively demonstrate safe practice on site as a way of setting an example for employees to follow.

Importance of Company Culture

Directors must strive to create a culture within the business where health and safety is promoted and understood throughout. This goes beyond just having strong H&S policies on paper; it is also about personally and actively promoting this within the organisation. Suggested ways in which a director may try to do this are:

• Providing regular training for all employees, including those in management roles.
• Effective communication regarding health and safety throughout the business.
• Effective sharing of information regarding health and safety, such as policies and learning courses.
• Active promotion of behaviour which enforces health and safety policies and procedures.
• Demonstrating strong leadership which promotes health and safety culture throughout the business.

In the high-profile case labelled by the media as the ‘Volkswagen’s emissions scandal’, staff members in managerial positions were personally prosecuted for failing to comply with requirements relating to limits on vehicle emissions. In the courtroom, a former manager at Volkswagen emphasised that “poor company culture” was the reason that vehicles fell through the company’s safety processes and were subsequently sold to the public. This case outlines how having a strong culture that promotes health and safety communication can prevent such serious consequences.

Utilising Resources

In addition to ISO 45001, there is a wealth of guidance available to directors regarding their health and safety duties. We would recommend regular checks of the HSE website, particularly the Leadership Checklist and Climate Tools which are easy to use, concise tools which will aid a director in ensuring their duties are complied with. Some industries have drafted self-assessment checklists for directors which set out some of the measures that businesses can use to benchmark their own levels of leadership and culture.

Consequences Faced by Directors

Directors can be prosecuted under section 37 of the Health and Safety at Work Act 1974 for breaching their duties. Just exposing anybody to safety risks in a negligent way can lead to investigations and more. Where a gross breach of duties result in a fatality at work, directors may be prosecuted for Gross Negligence Manslaughter together with their companies under the Corporate Manslaughter and Corporate Homicide Act 2007. Additionally, recent cases have confirmed that the director may be disqualified from their position within the company under the Company Directors Disqualification Act 1986 section 2(1).

For more information, please contact Chris Green cbgreen@keoghs.co.uk or Melissa Ingram at Keoghs on mingram@keoghs.co.uk.