Directors on the hook
Directors make most of the day-to-day health and safety decisions but, if something goes wrong, they are rarely held liable. This strange legal quirk is something that a Private Members Bill from MP Frank Doran aims to change, writes Godric Jolliffe.
While company directors can be prosecuted for health and safety offences under Section 37 of the Health and Safety at Work etc. Act (HSWA), this is mainly if they fail to ensure that their organisation complies with health and safety law.
It is therefore a “negative” obligation. It is also a piece of legislation that is rarely used, with just a handful of directors prosecuted each year.
Even more unusual is the court’s power to order disqualification of directors following health and safety offences under the Company Directors Disqualification Act 1986.
When Frank Doran, MP for Aberdeen North, presented his Health and Safety (Company Director Liability) Bill 2009-10 to the House of Commons in January he pointed out: “There is no obligation on any company director to take action to inform themselves of any offences being committed by the company or to take steps to prevent offences being committed.”
Employers, on the other hand, do have “positive” health and safety duties. Most obviously this is through Sections 2 and 3 of HSWA which provide the foundation for UK health and safety legislation.
S.2 requires employers to “ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees”. There is a similar obligation towards non-employees contained in S.3.
New law
Mr Doran proposes changing the law so that there is “a positive duty on all company directors to take all reasonable steps to ensure health and safety in all aspects of the company’s activities”. The most obvious way of doing this would be to amend the HSWA, possibly by adding an extra section to s.37.
This would, Mr Doran told the Commons, effectively put directors in the same position as other employers and “remove a glaring anomaly in our health and safety laws”.
TUC support
This is an approach that the TUC supports. The wording of Mr Doran’s proposal mirrors the TUC’s preferred option in a recent briefing document. This was a proposal suggested to the Health and Safety Commission (then in charge of the Health and Safety Executive (HSE)) in 2006.
The TUC goes further, however, and says that there should be an Approved Code of Practice as well – based on existing voluntary guidance – which makes clear what is expected of directors, though they would not be bound to follow it.
However, they would have to prove to a court that they had taken alternative steps to those set out to prove that they had complied with the legislation.
The TUC says: “This new duty would be the biggest driver yet in changing boardroom attitudes towards health and safety.”
Resistance
Like turkeys and Christmas, directors are unlikely to welcome any change to the current law. New laws would be unnecessary and may be counter productive says the Engineering Employers Federation (EEF) – the manufacturer’s organisation.
This conclusion is based on an EEF survey, which the organisation says shows that company boards are taking a more hands-on approach and spending more time on health and safety.
There is a “sea change in director involvement – active leadership is now very definitely the norm, not the exception” commented the EEF’s head of health and safety policy Steve Pointer.
Union reps might beg to differ. A report by UCATT in 2007 said that only 44 per cent of organisations have a health and safety director at board level.
Directors are likely to prefer that the existing voluntary guidance for directors on health and safety remains the status quo. In 2007, the Institute of Directors and the HSE issued Leading health and safety at work. This sets out the following essential principles:
- strong and active leadership from the top (including visible, active commitment from the board)
- worker involvement (including engaging the workforce in the promotion and achievement of safe and healthy conditions)
and - assessment and review (including identifying and managing health and safety risks).
But, says Mr Doran: “The voluntary approach is not working, so more encouragement is needed to persuade employers to take health and safety much more seriously.”
Last year, a major report into safety in the construction industry, commissioned by the Department for Work and Pensions, called for positive health and safety duties for directors. One Death is too Many said these duties should “ensure good health and safety management through a framework of planning, delivering, monitoring and reviewing”.
Pressure for reform
Last July, the government said it would respond to the report’s recommendations “later in the year”. The Work and Pensions Select Committee also called for a legal duty on directors to be introduced as soon as possible in the same month.
The Health and Safety (Company Director Liability) Bill is due a second reading on 23 April 2010. However, Private Members Bills rarely become law unless the government supports them (and there is very little parliamentary time left before the next general election).
The government did pledge to change the law in this area ten years ago in its Revitalising Health and Safety strategy. Supporting this Bill would be a quick way of delivering on that commitment.
References
Frank Doran’s speech can be found in Hansard: www.publications.parliament.uk - column_166
Health & Safety at Work, etc. Act 1974 and Companies Directors Disqualification Act 1986 can be obtained from www.opsi.gov.uk/legislation/about_legislation
Leading health and safety at work’ is available at www.hse.gov.uk/leadership