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Decision-maker or organisation. Where does the buck stop?

Decision-maker or organisation. Where does the buck stop?

When it comes to health and safety in the workplace, it is all very well having a detailed health and safety policy along with a suite of risk assessments and procedures, but if these do not reflect what is happening on the ground, they are not worth the paper they are written on. Companies need to be able to demonstrate how they manage health and safety risks in reality.  But it’s not just the company that will have to face the consequences should a serious accident, fatality or breach occur in the workplace. So where does the buck stop? Who is liable?

Let’s talk about the word liable first. The generally accepted definition is “having (legal) responsibility for something or someone” and the crux of the matter here is, can individuals within an organisation be personally liable? The short answer is yes; both together with the organisation they work for and independently. Furthermore, the consequences can expose those individuals to personal criminal prosecution, which, if convicted might lead to disqualification from acting as a director and even, in some cases, a custodial sentence.

What constitutes individual prosecution following a health and safety breach?

To be clear, the Health and Safety Executive (HSE) can pursue a criminal prosecution against an individual, as well as an organisation for a health and safety breach and it isn’t always following a serious accident or fatality. HSE will look at management arrangements and the role played by individual directors and managers.

In general, individual prosecution usually follows in cases where there have been personal acts or failings contributing to a breach or incident. Proceedings are not automatically brought against an individual in a management role, but considerations will be made and relevant questions will be asked. For example, whether the individual had effective control over the operation, did they have (or should they have had) knowledge of the circumstances surrounding the event, did they take obvious steps to avoid an incident and was responsibility shared between more than one level of management?

The most prominent cases in this field that we hear about tend to result from fatalities where there have been serious failures by individual directors or managers and they are charged with manslaughter. Importantly, whilst only organisations can be charged with corporate manslaughter, owners and senior managers can still be prosecuted for gross negligence manslaughter and health and safety offences.

Invariably, these prosecutions involve small businesses where the individual director is seen as the personification of the company. But not always. As many of the larger scale incidents will attest, senior management do not escape the scrutiny of the HSE or police when breaches occur and there does not necessarily have to be a death or injury to prompt investigation of the individual as well as the business itself, big or small.

How can decision makers avoid personal prosecution?

It’s important to bear in mind that much like every industry regulator, the HSE don’t have to arrange an onsite visit; they can and do appear unannounced. Therefore, it is prudent to ensure that relevant policies and procedures are kept up to date and more importantly, that they’re adhered to by all workers from the top down.

When it comes to avoiding personal prosecution, central to the defence for decision makers will often be that there were safety systems in place with no reason to suspect they weren’t working; secondly, that the people carrying out the work and managing it were competent; and thirdly, that the safety systems as well as the people were monitored and reviewed on a regular basis.

Preparation is key

Are you thinking seriously enough about managing risks within your organisation and how minimising risks can result in a reduced number of accidents? Putting in place well thought through risk processes, adhering to those processes and reviewing them regularly may not only avoid injury but also avoid the devastating ordeal of potential prosecution.

Mike Appleby, leading health and safety lawyer with niche firm Fisher Scoggins Waters, adds:

“Good, reliable information and data that demonstrates how safety is being managed can be key to building a defence. As Mark Twain once said: ‘It ain’t what you don’t know that gets you into trouble. It’s what you know for sure that just ain’t so’”.