The Health and Safety Offences Act 2008 ("the 2008 Act") became law on 16 January 2009. The Act (which extends to Scotland and Northern Ireland as well as England and Wales) introduces a new regime for sentencing which includes the option of imprisonment for directors, as well as permitting significantly higher fines in the Magistrates Court.

The Effect of the Act

The 2008 Act does not create any new offences. Instead it amends sentencing powers as follows:

  • Imprisonment is now an option for breaches of the duties owed under the Health and Safety at Work etc Act 1974 ("HSWA 1974") including sections 2 and 3. The maximum penalty is imprisonment for a term not exceeding 12 months if the matter is dealt with summarily in the Magistrates Court, or imprisonment for a term not exceeding 2 years if the matter is dealt with in the Crown Court.
  • The maximum fine in the Magistrates Court is raised from £5,000 to £20,000 per offence for most offences. There is no change to the power to award an unlimited fine in the Crown Court for relevant offences; and
  • Certain offences, previously triable only in the Magistrates Court, are now triable in either the Crown Court or the Magistrates Court.

Who does this target?

Judith Hackitt, the Chair of the Health and Safety Executive has said:-

"It is right that there should be a real deterrent to those businesses and individuals that do not take their health and safety responsibilities seriously. Everyone has the right to work in an environment where risks to their health and safety are properly managed, and employers have a duty in law to deliver this".

Directors and Managers

Under section 37 of HSWA 1974 where an offence has been committed under the Act by a corporate entity and that offence is proved to have been committed "with the consent or connivance of, or to have been attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or a person who is purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence".

The change under the 2008 Act is to add imprisonment as one of the sentencing options. This means that if there is a successful prosecution against the corporate entity for breach of the duty to ensure, so far as is reasonably practicable, the health, safety and welfare of employees (section 2 HSWA 1974) or, if the company fails to conduct its undertaking in a way which does not expose third parties to risk, so far as is reasonably practicable, (section 3 HSWA 1974) then, if the provisions of section 37 are satisfied, in appropriate cases, a custodial sentence will be imposed.

This is a radical change because previously imprisonment would only have been possible following a successful prosecution for gross negligence manslaughter. Now, imprisonment is an option (in the most serious cases) even where the breach has not resulted in death.

These changes are clearly targeted at directors. As section 37 includes a wider category of individuals (manager, secretary or similar officer) we will have to wait and see if senior managers are also at risk. In R v Boal [1992] 2WLR890 a similar provision in the Fire Precautions Act 1971 was interpreted by the Court of Appeal as putting on risk those who are in "a position of real authority, the decision makers within the company who have both the power and responsibility to decide corporate policy and strategy". Whilst there may be arguments in particular cases, we consider that in most instances a prosecution under section 37 will be limited to directors.

Senior managers, and other employees, can, however, face prosecution under section 7 HSWA 1974 for a breach of the duty owed to take reasonable care for their own health and safety and that of others. The effect of the amendments introduced by the 2008 Act is to make a custodial sentence an option where there is a successful conviction under section 7.

Conclusion

The amendments heralded by the 2008 Act evidence a continuation in the increase of penalties against corporate entities, and now directors, for health and safety offences. The 2008 Act follows on from the Corporate Manslaughter and Corporate Homicide Act 2007, which came into force last year, in increasing ever further the stringency of the regulatory position relating to health and safety.

The new Corporate Manslaughter offence makes it easier for large corporate entities to be prosecuted for manslaughter, but the new law has been criticised by some because it did not create any new offences relating to directors. These amendments now place directors at risk of a custodial sentence for breaches under HSWA.

Directors should seek to ensure that health and safety matters are actively discussed at Board level and that sufficient checks and balances are put in place to make sure that health and safety is adhered to at all levels within the organisation.

Given the increased penalties faced by both corporate entities and individuals, and the likelihood that the actions of individuals will come under further scrutiny, it is also important to seek to ensure that proper procedures for investigating incidents exist, which enable corporate entities both to learn lessons from mistakes but which do not inadvertently increase the prospect of the company or an individual facing prosecution, by virtue of the way in which the investigation has been undertaken.