What are the main duties of Directors under Health & Safety laws?

“Health and safety is integral to success. Board members who do not show leadership in this area are failing in their duty as directors and their moral duty, and are damaging their organisation.”  – Health & Safety Executive 

The main duties for directors are as follows:

1. The organisation must appoint a competent person to help meet the health and safety duties: someone with the necessary skills, knowledge and experience to manage health and safety across all the organisation’s activities– i.e. not just on the premises but also when undertaking off-site trips and activities.
2. Ensure you have an appropriate health and safety policy in place which details how you will manage health and safety. This should detail who does what, when and how.
3. Undertake an appropriate risk assessment. Risk assessments will identify potential risks and then identify reasonable steps to control those risks. You should record the findings and then start to implement the control measures.
4. Keep up to date with Health and Safety Executive guidance (e.g. on specific hazards and activities). There needs to be a very good reason for a failure to adhere to this guidance on best practice.
5. Staff should be aware that any concerns should be reported to the Health and Safety lead.
6. Ensure that appropriate policies are in place for managing any identified risks. Policies should be kept up to date and disseminated to staff and used in practice.
7. Provide clear information and training to employees. Ensure they have the appropriate tools to do their job safely. Both long-standing employees and new joiners should receive appropriate training
8. Keep good records and clear documentation.

The main obligations of an organisation to its employees and visitors are derived from various pieces of legislation, including the following main provisions:

Health and Safety at Work etc Act 1974 (HSAWA) : The Act places a duty on every employer to ensure, ‘so far as is reasonably practicable’, the health, safety and welfare at work of all their employees, and also ‘to conduct the undertaking in such a way as to ensure, so far as is reasonably practicable, that persons who are not in their employment who may be affected thereby are not thereby exposed to risks to their health or safety.’

The Management of Health and Safety at Work Regulations 1999 : This details the steps employers are required to take to manage their health and safety obligations under the HSAWA. These include: employers to carry out risk assessments, make arrangements to implement necessary measures, appoint competent people to oversee health and safety and arrange for appropriate information and training for staff and visitors.

Workplace (Health, Safety and Welfare) Regulations 1992 : These cover a wide range of basic health, safety and welfare issues such as ventilation, heating, lighting, workstations, seating, drinking water and welfare facilities.

Personal Protective Equipment at Work Regulations 1992 : Require employers to provide appropriate protective clothing and equipment for their employees.

Provision and Use of Work Equipment Regulations 1998 : Require that equipment provided for use at work, including machinery, is safe.

Health and Safety Information for Employees Regulations 1989 : Require employers to display a poster telling employees what they need to know about health and safety.

Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR) : Require employers to notify certain occupational injuries, diseases and dangerous events to the relevant authorities.

Control of Substances Hazardous to Health Regulations 2002 (COSHH) : Require employers to assess the risks and control substances which are hazardous to health, such as asbestos, cleaning products and chemicals.

Employer’s Liability Insurance

If you have employees or apprentices you must carry employer’s liability insurance. This insurance will enable you to meet the cost of compensation for your employees’ injuries or illness whether they are caused on or off site. You must be insured for at least £5 million. However, you should look carefully at your risks and liabilities and consider whether you need more than £5 million. In practice, most insurers offer cover of at least £10 million. You must display a copy of the certificate of insurance where your employees can easily read it.

You can be fined up to £2500 for any day which you are without suitable insurance. If you do not display the certificate of insurance or refuse to make it available to HSE inspectors when they ask, you can be fined up to £1000.

The buck stops with the Board

The directors are ultimately responsible for health and safety, and there must be a visible and active commitment from the board. Board members should consider what information they need to receive and review to enable them to monitor health and safety effectively. Ideally the issue should be a standing item at board meetings. Although prosecutions are frequently bought as a result of an accident in which someone has been hurt, a company can be liable even where no personal injury has occurred. All that the prosecution need prove is that a state of affairs existed that posed a real risk to the health and safety of employees or others.

If there is a prosecution it is likely that one or more directors will required to attend court to defend the organisation’s position.  If it can be shown that the offence has been committed with the ‘consent or connivance’ of a director, or the incident is his attributable to his neglect, he or she may face prosecution in a personal capacity as well. ‘Consent’ and ‘connivance’ requires that the defendant knew the material facts that constituted the offence by the company and agreed to conduct its business on the basis of those facts, ignorance of the law being no defence. ‘Neglect’ does not necessarily require knowledge on the defendant’s part of the material facts giving rise to the breaches, but can include the situation where he ought to have been aware of those circumstances.

Prosecutions for breach of health and safety laws are increasingly common and can result in hefty fines and adverse publicity. The Corporate Manslaughter and Corporate Homicide Act 2007 made it easier for organisations to be held corporately accountable for deaths caused by their failures. An organisation can be guilty of a criminal offence under the Act if ‘the way in which its activities were managed or organised’ caused a person’s death, and amounted to a ‘gross breach’ of a relevant duty of care owed by the organisation to the deceased. Convicted organisations can receive an unlimited fine, and can be required to publicise the fact that they have been convicted. The number of prosecutions has been gathering momentum with over 18 cases since April 2008. Directors and officers insurance may provide some cover for the costs of successfully defending court proceedings, but will not cover the fine itself.

Compliance with health and safety provisions is an essential part of the Board’s duty to monitor risks. For more on the duties of directors download our FREE Guide to Directors’ Duties.

Mark Johnson is an experienced solicitor & chartered company secretary supporting businesses, charities, social enterprises & academy trusts on governance, compliance & legal affairs. Please get in touch info@elderflowerlegal.co.uk or 01625 260577.

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