A recent Crown Court case provides a stark reminder of the serious potential consequences for company directors who are found in breach of health and safety legislation. In this extreme case, two company directors were imprisoned for gross negligence manslaughter following the death and serious injury of two employees who had been working at height. One director was imprisoned for six years and the other for eight months. Falls from height are one of the main causes of work-related deaths in Britain.
A breach of health and safety legislation is a criminal offence and can have a major impact on a business and the individuals within it. If a safety breach within a workplace causes a death, then those responsible may also face prosecution for gross negligence manslaughter (in the case of individuals) or corporate manslaughter (where the defendant is a business).
Fines for the most serious safety breaches are now routinely in the hundreds of thousands of pounds. Coupled with the need to pay not only the business’ own legal costs but also the prosecutions’, non-compliance with health and safety law is a costly exercise.
Increasingly, companies look carefully at the safety record of potential business partners and requests for details of any safety convictions have become standard on tender questionnaires. The damage caused to a business’ reputation by a criminal conviction could last longer than the initial financial outlay.
Prosecution of individuals
When investigating safety breaches, inspectors routinely consider the role of individuals in workplace accidents. Although the level of fines imposed against individuals convicted may not be as large as a fine imposed on a business, the potential impact on the individual can be severe.
Individuals can be imprisoned for breaches of health and safety law, with sentences of up to six months in the Magistrates’ Courts and up to two years in the Crown Courts. Even individuals that avoid a custodial sentence could still see the repercussions as a conviction could restrict their ability to travel abroad or work in certain industry sectors.
Who can be prosecuted for safety offences?
There are a number of individuals/groups that can face prosecution for breaching health and safety requirements including
- employers (including limited companies, unincorporated associations, partnerships or individuals).
- owners of premises used as a workplace
- individual employees
- designers, manufacturers, importers or suppliers of work equipment.
What factors will the HSE consider when deciding whether to prosecute safety breaches?
The HSE (Health and Safety Executive) has published a number of documents that set out how it will investigate and prosecute the health and safety breaches. The key factors that the HSE will consider in favour of a prosecution include
- death as a result of a breach of legislation
- reckless disregard of health and safety requirements
- inspectors intentionally obstructed in the course of their duties
- false information or there intent to deceive which gives rise to a significant risk.
How can a business influence the decision to prosecute?
In some less serious cases (for example, where it is a purely technical offence), it may be possible to influence the enforcing authority’s decision to prosecute. This could be achieved by co-operating with the regulator’s investigation, and if appropriate, sending a representative of the business to take part in an interview/provide written answers to questions under caution.
Insurance and criminal liability
It is important to check whether the business’ existing insurance policy includes legal expenses cover in the event of an investigation and a criminal prosecution being brought against the business for a safety-related breach.
Many insurance companies have panels of preferred lawyers to whom they refer their insured for legal advice. Nevertheless, a business is entitled to be represented by the lawyer of its own choice.
Most policies cover defence legal costs. However, if several members of staff are also prosecuted, the cover may not extend to all of them. Check whether the existing policy includes protection for senior managers and directors.
Although defence costs may be covered by such policies, any fine imposed on the business following conviction certainly will not be. Similarly, where the court orders the defendant to pay the prosecution’s reasonable costs in bringing the case, these costs are rarely covered by business insurance.