Your health and safety duties

The problem
Due to financial constraints the finance director of a hotel chain has postponed work to overhaul the lifts. Two guests at the hotel are badly injured when a lift is involved in an accident. The health and safety inspector concludes that the accident was caused by excessive wear and tear on a number of mechanical parts, which should have been replaced as part of an overhaul. The inspector is investigating the finance director's role in the accident.

Expert Advice

The Health and Safety at Work Act 1974 (HSWA) imposes a number of obligations on companies to ensure the health and safety of their employees and visitors to their premises, including customers and contractors. Although there is no specific legislation covering directors' responsibilities, directors can still be prosecuted.

The enforcement code introduced last year encourages prosecutors to investigate the role of directors in accidents. If convicted, the director can be disqualified from holding the position of company director for up to 15 years. In some cases, there is also the possibility of imprisonment.

If the inspector finds evidence to suggest that the hotel chain's failure to ensure the safety of its guests in this case occurred as a result of a decision taken by the finance director, then he may well find himself in the dock alongside, or instead of, the company. If convicted in a magistrates' court, the director could face a fine of up to £20,000, or an unlimited fine if convicted in the Crown Court.

Although prosecution of directors is still relatively rare, the trend towards mounting such prosecutions is growing, especially where a fatal accident has occurred as the direct result of a decision to put profit before safety.

If prosecuted, the director would need to show that he did all that was reasonably practicable to ensure the safety of guests. In the case of the hotel chain, the courts would most likely hold that the finance director should have taken the problem lift out of service until money became available to fix it.

Companies and directors will also benefit from following the recent guidance issued by the Health & Safety Commission (HSC) advising directors on how they can fulfil their responsibilities in respect of health and safety.

Check list

The HSC guidance sets out a five-point action plan for the board:

\* The board, as a collective body, should formally accept its role in providing leadership for health and safety matters - this can be done by way of implementing a comprehensive health and safety policy.

\* Each member of the board should accept his or her personal responsibility for providing their organisation with leadership for health and safety issues. For example, each director should be aware of how health and safety affects his business area.

\* The board should ensure that its health and safety policy aims are reflected in all decisions it makes. This can be done by ensuring health and safety is considered as part of all decisions taken at board level - for example, the hiring of new staff, the implementation of new procedures, and the commissioning of new equipment.

\* There should be recognition among board members of their role in involving workers in improving health and safety. This can be done by ensuring that there is a two-way reporting process between staff and management and that the board is notified of health and safety concerns.

\* The health and safety director should ensure that the rest of the board is kept fully informed of all health and safety management issues.

The HSC will monitor the willingness of businesses to follow the guidance before it decides whether a more formal approach, such as a code of practice, is necessary. The failure of managers to follow the guidance in spirit, if not to the letter, may give rise to the need for more formal measures.

The demonstration by business leaders that they give priority to health and safety issues may avoid not only the prosecution of directors, but also the implementation of a mandatory code of practice.

Contacts
Berwin Leighton Paisner Tel: 020 7760 1000
Web: www.blplaw.com

Jagdeep Tiwana Tel: 020 7427 1667
E-mail: jagdeep.tiwana@blplaw.com

Health & Safety Executive Tel: 0870 154 5500
Web: www.hse.gov.uk