October 2009 marked two years since the publication of the HSE/Institute of Directors’ joint guidance on “Leading Health & Safety at Work” (INDG417), which aimed to set an agenda for effective leadership of health and safety at board level and offer principles and guidance to directors and officers, governors, trustees, and senior managers to help find the best way to promote health and safety and achieve compliance within their organisation.

The pressure on directors to be held accountable for matters of health and safety has been widely publicised over recent years, and has been backed by campaigns such as that currently being driven by HSW/HSB Magazine. The public demand has been such that in January backbench Labour MP Frank Doran introduced a Private Members’ Bill to amend the Health and Safety at Work etc. Act 1974 (HSWA) by incorporating a positive duty on company directors to ensure health and safety in their organisations.

Although with the recent ending of the last parliamentary session the Bill will make no further progress, it is perhaps an opportune time to reflect upon the Joint Guidance in light of the recommendations that were made in the Bill. After all, it is likely that the same or similar recommendations will make their way into future Bills.

The Joint Guidance: who should take responsibility and what must they do?

The joint guidance preceded (and therefore was perhaps, overshadowed by) the long-awaited Corporate Manslaughter and Corporate Homicide Act, which came into force 6 months later in April 2008, as reported in previous editions of The Key and Health, Safety & Environment Briefing.

The guidance advises that organisations should assign responsibility to a board director as health and safety “champion”, and outlines the range of tasks that should be carried out, from board level downwards, in order to achieve good health and safety management. Whoever within the management team is fixed with such responsibility should be able to demonstrate the 3 principles of good leadership as set out in the guidance – i.e. to provide strong and active leadership for matters of health and safety; engage worker involvement; and ensure ongoing assessment and review of health and safety management.

Tasks required of directors in adhering to these principles include:

  • Ensuring visible, active commitment from the board;
  • Establishing effective ‘downward’ communication systems and management structures, to be mirrored by effective 'upward' communication from the workforce;
  • Engaging the workforce in promoting and achieving safe and healthy conditions;
  • Providing high quality training;
  • Identifying and managing health and safety risks;
  • Accessing (and following) competent advice;
  • Monitoring, reporting and reviewing performance; and
  • Integrating good health and safety management with business decisions.

The guidance suggests that the board adopts a 4-stage approach to Plan, Deliver, Monitor and Review health and safety, and sets out core actions and good practice guidelines for each stage. The core actions relate directly to the legal duties of organisations, while the good practice guidelines recommend ways of carrying out the core actions.

In terms of assigning responsibility and leadership for health and safety, the guidelines state that whilst the CEO can give the clearest visibility of leadership, it is perfectly acceptable to appoint another board member as health and safety “champion”, as this will equally send out a strong signal that the issue is being taken seriously and that the strategic importance of health and safety is understood. It also recommends that, where appropriate, organisations might consider appointing a non-executive Director as “scrutineer” to oversee the arrangements implemented for health and safety and to ensure that the processes to support the board in dealing with such matters are robust.

Whichever board member is chosen, they must be able to demonstrate effective downward communication through the organisation as a whole. Regular health and safety meetings, site visits, engagement with the employees and mid-level management of those companies would therefore be essential in this regard.

The new duty that was proposed

The Health and Safety (Company Director Liability) Bill was presented to the House of Commons on 19 January and was originally scheduled for a second reading on 23 April. It proposed to amend HSWA to include a positive duty on company directors to take “all reasonable steps to ensure health and safety in all aspects of the company's activities”. The aim, stated Mr Doran, was to impose upon directors the same duties as the legislation currently places upon employers under Sections 2 and 3, and employees under Section 7.

Provision already exists within the HSWA 1974 which renders directors and senior managers liable for offences committed by the company where such offences are attributable to that director/manager’s consent, connivance or neglect (s37). However, Mr Doran argued that this was not a sufficient mechanism to hold directors and senior managers accountable, since it requires prosecutors to prove that a company director was aware, or should have been aware, that an offence had been committed, rather than placing an obligation on him to take positive action to prevent the offence from being committed in the first place.

Comment: The impact of the joint guidance

When presenting the Bill to the House of Commons Mr Doran referred to data collected by UCATT in its 2007 report “Bringing Justice to the Boardroom” to argue that, at that time, only 44 per cent of organisations had a health and safety director at board level. However he went on to acknowledge the benefits of such appointments by quoting success stories of companies such as British Sugar, Esso and Sainsbury’s, all of whom reported significant reductions in lost-time and injury rates when attaching direct responsibility for health and safety to a named director.

In 2009, the HSE commissioned a specific research report into the level of awareness of the joint guidance amongst directors and board members since its introduction, and whether or not this has been acted upon (RR695: Evaluation of Guidance for Directors and Board Members). The report found that after the first year of circulation, only 25% of organisations with five or more employees were led by directors who were aware of the joint guidance, and only half of that number had actually read it (13%). That being said, nearly half (48%) of the directors/ board members who had read the guidance had subsequently taken action as a result.

Further, 39% of directors and board members that had read the guidance strongly agreed that the guidance had improved their understanding of their responsibilities for health and safety in the organisation; 37% said the guidance had reassured them that they were compliant with health and safety legislation.

Whilst these statistics show a certain level of awareness of the joint guidance amongst directors, the actual percentage of organisations who have actively acted on the principles and core actions set out in the guidance seems markedly low. Meanwhile, if the success stories regarding accident reduction rates as quoted by Frank Doran are attributed to the implementation of such guidance, as he suggests, then there is an obvious benefit in organisations seeking to comply with the joint guidance by fixing health and safety management to the Board.

The positive duty upon directors proposed by the Bill will not now find its way onto the statute books, at least in the near future. However, the abandoned Bill is unlikely to be the last of its kind. In the meantime, if the profile of the Joint Guidance continues to be raised and more organisations consider and act upon its principles, it may be that calls for such legislative amendments will become less vociferous.