Public pressure for directors to take responsibility for health and safety breaches shows no signs of abating. Only a few weeks ago, the Crown Prosecution Service (CPS) said it would take a month to decide whether to prosecute directors from Railtrack and Balfour Beatty following the Hatfield accident. Also, towards the end of July, the Health and Safety Commission published its official “Guidance on Directors' Responsibilities”.

Regular readers of this column will be aware that we mentioned the consultation paper relating to such guidance in April. The official guidance varies little from those proposals and provides five action points:

  • the board needs to formally and publicly accept its collective role in providing health and safety leadership in its organisation
  • each member of the board needs to accept their individual role in providing health and safety leadership for their organisation
  • the board needs to ensure all board decisions reflect its health and safety intentions, as articulated in the health and safety policy statement
  • the board needs to recognise its role in engaging the active participation of workers in improving health and safety
  • the board needs to ensure it is kept informed of, and alert to, relevant health and safety risk management issues. The health and safety commission recommends boards appoint one of their number to be the health and safety director.

    The guidance is not law and compliance is not compulsory. However, the Health and Safety Executive (HSE) considers that firms that follow it will normally be doing enough to comply with their legal responsibilities, primarily found in sections 2 to 4 of the Health and Safety at Work Act 1974 (HSW Act) and the Management of Health and Safety at Work Regulations 1999.

    Of course, boards may fear that, by identifying particular individuals, they are setting them up for personal liability should accidents occur. There are various ways to manage this exposure and the overall issue of liability and boards should take advice when implementing the guidance. At the end of July, the authorities responsible for the enforcement and prosecution of companies and individuals following work-related deaths published a joint protocol for liaison. The protocol deals particularly with the crimes of manslaughter and corporate manslaughter.

    While the HSE is responsible for the enforcement of health and safety legislation, it does not have the power to investigate or prosecute for a general criminal offence such as manslaughter. Where such action is required following a work-related death, the police must investigate and the CPS prosecute. Thus, in pursuit of more efficient partnership and hence more effective prosecutions, the protocol establishes a liaison procedure between the three authorities.

    It is hoped that the resulting co-operation will help the authorities avoid the cumbersome, protracted and inefficient enquiries that have been highlighted by the recent Lea Oakes/Oakes Millers case.

    Chester Crown Court delivered its judgment in this case on July 24. The result was a total fine of £50,000 for the two firms following the death of a 12-year-old boy, Gerard Byrne, in June 1999.

    Byrne was killed by an HJ Lea Oakes lorry, which reversed into him as he was tying his shoelaces at Oakes Millers animal feed mill in Congleton. Both companies were convicted after pleading guilty to breaching section 3 (1) of the HSW Act – failing to consider risks to the public. Charges of manslaughter against a Lea Oakes director and corporate manslaughter against the firms were dismissed.

    This conviction comes more than two years after the offence. The prosecution brought by the CPS, incorporating the breaches of the HSW act, was delayed by 18 months and was only prompted by representations by the Byrne family. A delay that was unsatisfactory for all concerned. The police had originally investigated the incident as a road traffic accident and the HSE only began investigations once it was informed by the coroner. The police re-opened the investigation after the family's representation in April 2000 and sent a new file to the CPS in October 2000. In December, 18 months after the offence, the CPS decided to prosecute.

    The interaction between the three bodies following work-related deaths is, therefore, in need of an overhaul. It is hoped that the new protocol will reduce extended periods of uncertainty following work-related deaths, such as that endured by the parties in Lea Oakes/Oakes Miller case.

  • Stephen Shergold and Jacqui O'Keeffe are solicitors with law firm Denton Wilde Sapte.

  • Topics