Section 37 (1) of the Health and Safety at Work etc Act 1974
If a company commits a health and safety offence then its directors or senior managers can be prosecuted for breaching section 37(1) of the Health and Safety at Work etc Act 1974 (HSWA) if the corporate offence was due to their consent or connivance or attributable neglect.
Section 37(1) (HSWA) : Can I go to prison?
If convicted, a crown court can impose a sentence of up to two years imprisonment. The relevant sentencing guideline is the Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences: Definitive Guideline which is available of the Sentencing Council’s website (https://www.sentencingcouncil.org.uk/). The court can also disqualify a defendant from being a convicted director under the Disqualification of Directors Act 1986.
What is consent, connivance and attributable neglect?
Section 37(1) HSWA is a secondary liability offence. This means that the prosecution must first prove that the company of which the defendant is a director/senior manager has breached health and safety law. Once this is established it is then for the prosecution to prove that this breach was due to the consent or connivance or attributable to the defendant’s neglect.
Consent
is where the defendant knows of the material facts that constitute the corporate breach and has agreed to the conduct of the business in that way.
Connivance
has been described as wilful blindness or an intentional shutting of the eyes to something which the person, in their own interests, prefers to remain unaware.
In the Scottish case of R v Wotherspoon [1978] JC74 (at p78) the court stated in respect of attributable neglect:
“……. in considering in a given case whether there has been neglect within the meaning of section 37(1) on the part of a particular director or other particular officer charged, the search must be to discover whether the accused has failed to take some steps to prevent the commission of an offence by the corporation to which he belongs if the taking of those steps either expressly falls or should be held to fall within the scope of the functions of the office which he holds. In all cases accordingly the functions of the office of a person charged with a contravention of section 37(1) will be a highly relevant consideration…..”
This passage was cited with approval in the Court of Appeal case of R v P Ltd & G [2008] ICR96 CA. It makes clear that the nature of the director’s/senior manager’s role and the extent of that role is highly relevant when considering whether there has been neglect on the part of the defendant.
Our Expertise
FSW has secured the acquittal of directors prosecuted pursuant to section 37(1) HSWA. We acted for the managing director in one of the leading appellate case on directors’ health and safety duties and section 37(1): R v P Ltd & G [2008] ICR 96, CA. He was acquitted.
Representation and advice regarding Section 37 (1) HSWA prosecutions of company directors and senior managers .
These cases can be complex. It is essential that you seek expert legal advice at an early stage if the criminal investigation is considering the role of management in the alleged corporate health and safety failure .
FSW Solicitors have expert knowledge in defending s37(1) prosecutions. We offer full advice and legal representation throughout the process. Please telephone us on 0207 993 6960 for more information or email Michael Appleby.
Be Prepared
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