The Health & Safety Executive has powers to prosecute companies and directors, in their personal capacity, for breaches of health and safety law. This can result in very substantial fines and potentially custodial sentences for directors.
Many companies regard health and safety as a nuisance and do not take sufficient steps to ensure they comply with the law. The phrase ‘Health and Safety gone mad’ is often cited. However, what are often overlooked are the consequences of breaching the law, which can involve drastic fines for the company and / or the directors concerned. In addition, in some circumstances directors can also face a prison sentence. It is therefore madness if businesses do not pay sufficient regard to health and safety law and take steps required to avoid potential pitfalls.
Below is some general guidance as to consequences that can arise from investigations and prosecutions by the Health & Safety Executive:
Is Insolvency the answer when your company is faced with a Health & Safety Executive prosecution?
No, it isn’t. Entering an insolvency process (eg. liquidation) when your company is facing a Health & Safety Executive prosecution will, in most cases, result in the Health & Safety Executive bringing related prosecutions against directors personally, especially if the underlying reason for entering the insolvency process is considered an attempt to otherwise evade either (i) the Health & Safety Executive prosecution itself or (ii) having to pay the substantial fine which often results from it. So, instead of corporate insolvency bringing the Health & Safety Executive prosecution to an end, it is likely to have the effect of transferring the Health & Safety Executive’s attention away from the company but on to the directors in their personal capacity.
What can happen if the Health & Safety Executive prosecutes a director personally?
If the Health and Safety Executive prosecute a director in their personal capacity it means that a criminal prosecution is brought through the criminal justice system. However, since a number of breaches of Health & Safety law are “strict liability” offences, the Health & Safety Executive often do not have too much difficulty in establishing criminal liability on the part of the director. The outcome of the criminal prosecution is often therefore (i) a criminal record for the director (ii) a substantial fine payable by the director and / or (iii) the director potentially being sent to prison.
Is the level of fine that the Director pays limited to the amount that the Company would have paid?
No, it isn’t. The Health & Safety Executive prosecution against the Director personally may be considerably greater than the level of fine that a Company may be liable for in a Health & Safety Executive prosecution?
If no one is hurt or killed at work, there won’t be a Health & Safety Executive prosecution will there?
The Health & Safety Executive will prosecute Companies and / or Directors irrespective of whether an injury or death occurs at work. Clearly, the level of penalty sought in the Health & Safety Executive prosecution is likely to be influenced by whether someone has suffered injury or death as the result of a potential breach of Health & Safety law. However, a Health & Safety Executive prosecution (and conviction) can result even if nobody is injured or killed at work if the Health & Safety Executive gets wind that something is amiss, and even in that scenario fines can still be eye wateringly huge.
What should you do if you or your company is the subject of a Health & Safety Executive investigation or prosecution?
It is critical that you obtain independent legal advice in relation to the matter as soon as possible, even if the Health & Safety Executive’s investigation is only at an early stage. Missed opportunities at this point cannot be put right at a later stage.
Even if it is not possible for a company to deny liability due to the specific background of the case, it may be possible to minimise the damage done to the company (or to the directors) when it comes to sentencing, but expertise is required to optimise the chances of doing so.
What can you do to avoid you or your company being the subject of a Health & Safety Executive investigation or prosecution in the first place?
Regular training from a Health & Safety Executive approved training establishment is essential to ensure that you keep abreast of, amongst other things, what risk assessments need to be carried out in any given scenario (and how to document these properly) and to have a clear understanding of what your obligations are under Health & Safety law in any given situation and what other parties obligations are (your client’s obligations / your sub-contractors obligations).
IF YOU OR YOUR COMPANY REQUIRE LEGAL ADVICE CONCERNING A HEALTH & SAFETY EXECUTIVE INVESTIGATION OR PROSECUTION, CALL VERISONA LAW NOW AND SPEAK TO OUR COMMERCIAL DISPUTE RESOLUTION TEAM.
Senior Associate Solicitor
19 April 2017
DDI: 023 9231 2085
IMPORTANT NOTE: This article is intended to be for general guidance purposes only and should not be considered or relied upon as legal advice. Cases invariably must be considered on their own facts and laws are always subject to change. If you need assistance on issues raised in the article above then please contact Verisona Law for specific advice.
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