Company director David Steed has been jailed for eight months for breaching s37 of the health and Safety at Work etc Act 1974 and section 4 of The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013.
He was also disqualified from being a company director for seven years.
This case highlights the considerable consequences faced by company directors under the Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences Definitive Guidelines (the Sentencing Guidelines). Directors are more at risk than ever of receiving prison sentences if convicted of breaching health and safety law, making it crucial to instruct an experienced lawyer specialising in health and safety and criminal defence.
A horrifying accident
The accident for which Mr Steed will spend at least four months behind bars, involved a young worker burned on his arms and legs after being instructed to stand on a skip and pour a drum of flammable thinners into burning waste. The action resulted in a fireball which blew the employee off the skip.
The investigation that followed found Mr Steed failed to ensure the waste material was burned safely, did not provide first aid to the employee or send him to hospital and neglected his legal duty to inform the Health and Safety Executive.
The Sentencing Guidelines and company directors
Not only do the Sentencing Guidelines represent an enormous increase in the fines imposed upon companies convicted of health and safety offences, but they also have significantly lowered the threshold for when the court will sentence individuals convicted of section 7 of section 37 of the Health and Safety at Work etc Act 1974.
Research showed that the number of company directors and managers prosecuted by the HSE in the year to 31st March 2016 was 46, compared to 15 in the previous year. Twelve were sentenced to prison.
Most prosecutions occur within SME’s, in which directors tend to be closer to the ‘shop-floor’, therefore affording closer scrutiny. However, the new sentencing guidelines for health and safety breaches with turnover related fines has created a new set of worries for directors regardless of the size of their company.
How can company directors protect themselves?
When a director or senior manager is investigated by the police or the HSE following a workplace accident a key guidance document that will be considered in the criminal investigation will be HSE’s ‘Leading health and safety at work’’ INDG 417, which can be downloaded at http://www.hse.gov.uk/pubns/indg417.htm.
According to HSE this guidance sets out the agenda for the effective leadership of health and safety and is designed for use by all directors and applies to organisations of all sizes. The guidance follows the ‘PLAN, DO, CHECK and ACT’ approach, which is mirrored in HSE’s guidance ‘Managing health and safety’ (HSG65).
FSW acted for the Managing Director in one of the leading appellate cases upon directors’ health and safety duties, R v P Ltd and G  ICR96 CA. The director was acquitted of allegedly breaching section 37 of the 1974 Act following the Court’s ruling when HSE offered no evidence.
During the course legal argument Latham LJ, who gave the lead judgement in the case, observed:
“If there is a proper system set up for health and safety that will usually be sufficient for [a director/senior manager] to say “I have done my duty. I have set up that system”, in the absence of material to make it plain to him that something was actually wrong with it.”
In broad terms what this often means is being able to demonstrate:
There are safe systems of work in place;
The people undertaking the work are competent;
There is a process for monitoring/reviewing those safe systems and the people engaged in the work.
Responding to criminal investigations
It is advisable for directors and their companies to have in place a protocol for responding to a criminal investigation which covers such matters as dealing with requests for interviews and documentation by the police/HSE, when an organisations’ internal accident investigation ought to attract Legal Professional Privilege (LPP) - investigators are not entitled to documents covered by LLP - dealing with the media and responding to enforcement notices and/or notifications of contravention served under HSE’s Fee for Intervention Scheme (FFI).
Decisions made in the first 48 hours after an incident can have a significant impact on the outcome of a case. This is why it is important to have a protocol in place but it is also important to engage lawyers experienced in advising in the aftermath of a serious incident and have experience in defending at trial health and safety and manslaughter prosecutions..
Given the level of fines and the increased possibility of a custodial sentence, company directors cannot afford to be complacent about health and safety management. Should an incident occur within your organisation then you need to ensure you have a protocol for responding and the right legal representation.
Fisher Scoggins Waters are a London based law firm who are experts in construction, manufacturing and engineering matters. If you have recently had a health and safety incident occur in your workplace and require legal advice and/or an emergency response, please phone us on 0207 993 6960.