Personal liability under section 37
Most health and safety duties fall on the employer as a body corporate. Section 37 of the Health and Safety at Work etc. Act 1974 reaches past the company to the people who run it: where an offence by the company is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a director, manager, secretary or similar officer, that person is guilty of the offence as well. Since the Health and Safety (Offences) Act 2008 the penalties for individuals include imprisonment of up to two years, and a court can also disqualify a convicted director under the Company Directors Disqualification Act 1986.
Neglect is the limb that catches most directors: not the one who told a site to cut a corner, but the one who never asked, never read the audit, never funded the training and left the policy unsigned for three years. The HSE prosecutes directors under section 37 every year, and the question in each case is what the director knew, or should have known, and what they did about it.
The framework: plan, deliver, monitor, review
Leading health and safety at work, published jointly by the HSE and the Institute of Directors as INDG417, is the guidance a court and an inspector measure a board against. It asks four things of a board and its members:
| Stage | What the board does |
|---|---|
| Plan | Owns the health and safety policy, sets the direction, puts health and safety on the board agenda and integrates it into business decisions, including major changes and acquisitions |
| Deliver | Resources it: competent advice, training, time and money; appoints a board member to champion it; ensures the management system works and that the workforce is consulted |
| Monitor | Receives leading and lagging indicators, audit results, incident data and the outcomes of investigations, and asks what they mean |
| Review | Reviews performance at least annually, acts on what it finds, and reports on it publicly where the organisation reports at all |
The guidance is explicit that the same four stages apply to a small business run by its owner as to a listed company; what changes is the scale of the arrangements, not the responsibility.
Corporate manslaughter
The Corporate Manslaughter and Corporate Homicide Act 2007 makes an organisation guilty of the offence where the way its activities were managed or organised by its senior management caused a death and amounted to a gross breach of a relevant duty of care. It is an offence of the organisation, not the individual, and it sits alongside rather than replacing section 37 and the common-law offence of gross negligence manslaughter, under which individual directors and managers can still be prosecuted personally.
How offences are sentenced
The Sentencing Council’s definitive guideline for health and safety offences, corporate manslaughter and food safety offences, in force since February 2016, sets fines by a matrix of culpability (from very high to low), harm (the seriousness of the harm risked and the likelihood of it) and the organisation’s turnover. For a large organisation, one with turnover over £50 million, the starting points for the most serious health and safety offences run into the millions of pounds; for corporate manslaughter the range reaches £20 million. Medium, small and micro organisations are sentenced on proportionately lower tables, and the court then adjusts for aggravating and mitigating factors, an early guilty plea and the organisation’s means.
The guideline changed the arithmetic of health and safety for boards: a fine is now calculated from turnover, not capped by precedent, and the culpability assessment looks directly at what the leadership knew and did. That is why the board’s own records, the minutes, the audits received and the actions taken, are the first documents a defence solicitor asks for.
What an effective board does
- Signs and dates the health and safety policy, and re-signs it at every review.
- Names a director as the health and safety champion and puts the subject on every board agenda, not the annual one.
- Appoints and listens to a competent person, and knows who that is.
- Receives a short dashboard each meeting: leading indicators (inspections done, training current, actions closed) alongside lagging ones (incidents, RIDDORs, days lost).
- Reads the audit and the incident investigations and minutes the decisions taken on them.
- Asks about health and safety before approving a new site, process, contract or acquisition, not after.
- Walks the workplace, and talks to the people doing the work, at least once a year.
None of this needs a large organisation. It needs a board that has decided the subject is its own, which is the finding the HSE and the courts look for when something has gone wrong.