It is widely accepted that a company will not achieve high levels of health and safety management without the active participation of its directors. Directors who do not show leadership in the area of health and safety are likely to be considered to be failing their duty as directors as well as their moral duties, and in all likelihood damaging their organisation.
In the UK, there are no express legal duties falling upon directors with regard to health and safety management. Directors can however be prosecuted for consenting or conniving to any offence committed by their Company or if their Company’s offence(s) can be attributable to their neglect. Directors found guilty of these offences can face unlimited fines and up to 2 years imprisonment. They can also be disqualified from acting as a director. Directors could also be guilty of gross negligence manslaughter if there has been a gross breach of a duty of care owed to the deceased (which essentially amounts to knowing that a dangerous state of affairs existed and taking no reasonable steps to stop it).
Directors are expected to follow guidance issued by the Health and Safety Executive (HSE) and the Institute of Directors (IOD), entitled “Leading Health and Safety at Work” (the “Guidance”). This Guidance was re-issued in 2013, highlighting its importance.
The Guidance sets out three essential principles that a board should follow and which are intended to “underpin the actions” that lead to good health and safety performance.
- Strong and effective leadership from the top: this is to include visible, active commitment from the Board; establishing effective downward communication systems and management structures; and integration of good health and safety management with business decisions.
- Worker involvement: including engaging the workforce in the promotion and achievement of safe and healthy conditions; effective upward communication; and providing high quality training.
- Assessment and review: including identifying and managing health and safety risks; assessing and following competent advice; and monitoring, reporting and reviewing performance.
In addition to setting out the three essential principles above, the Guidance also provides a four point agenda for embedding the essential health and safety principles:
- Plan – Set the direction for health and safety.
- Do – Deliver health and safety.
- Check – Monitor health and safety.
- Act – Review health and safety.
The agenda consists of core actions for boards and individual board members relating directly to the legal duties of an organisation and good practice that set out ways to give the core actions practical effect. The core actions are intended to set a standard in the UK.
Over the last two years, the HSE has been particularly vocal in identifying the responsibilities falling on Boards and have warned that if Boards do not adopt the voluntary Guidance, then express legal duties will be introduced. The HSE further warned that where there is a workplace fatality, the HSE and the Police will look to see whether or not the Boards have conducted their business in a manner that is aligned and compliant with the Guidance. Accordingly, it is essential that all Boards pay heed to the Guidance.