Rodney Slater was one of five Directors of a family-run garden aggregates bagging company whose maintenance engineer was killed by the robotic arm of an automated bagging machine. The physical guards, light barriers and interlocks had been defeated on the machine, allowing unsafe access. The prosecution case was, amongst other things, that RS had been personally and repeatedly warned about the dangers on the machine and had failed to take any steps to rectify the failings. The prosecution also alleged that Rodney Slater was responsible for Health and Safety in light of his employment contract. Mark Balysz (Crown Office Chambers), instructed by Mark Thompson and Alex Traynor, from DWF's Regulatory, Compliance and Investigations Team, successfully argued that Rodney Slater did not have 'real power and authority' pursuant to the position in R v Boal – notwithstanding Rodney Slater's appointment as a Director.
Companies must remember that it is not only the corporate entity that owes a legal duty to its employees and who can be prosecuted in the event of an accident. Health and Safety legislation also places legal duties on employees and Directors, who can be personally liable when such duties are breached. It is therefore vitally important that Directors show good leadership in this area and are using the HSE's 'Plan-Do-Check-Act' model to ensure that the workplace provides a safe environment for all. Failing to do so, can have devastating consequences, with lengthy prison sentences now being passed in accordance with the Sentencing Council's guidelines.
Section 37 of the Health and Safety at Work Act states that an offence committed by the body corporate, can be committed with the consent, connivance or neglect of a Director, Manager, Secretary or other similar officer. The liability does not fix simply by the name given to the individual's role, but also due to the individual's power and authority. In R v Boal, a case under the Fire Precautions Act 1971, criminal liability is only to be fixed to those who are in a position of: 'real authority, the decision makers within the company who have the power and responsibility to decide corporate policy and strategy'. This point was successfully argued in this recent case at Bradford Crown Court, along with HSE guidance OC130/8, which states that 'a document that assigns duties or responsibility to an individual should not be taken at face value'.
So what does this mean for other businesses?
- The implication is that you need strong and active leadership from the top and right throughout the organisation.
- Leadership should be visible, transparent and should ensure that communications channels with the workforce are open both ways.
- Health and Safety decisions need to be integrated into the business through its workforce, documented and easy to understand, regularly assessed, monitored, reviewed and updated – whilst providing regular updates and training to the workforce.
- Good health and safety management can bring many benefits including productivity and reputation. Failing to get it right could have a human and financial consequences and at worse, could lead to an injury or fatal accident.
If your business would welcome an independent review of its health and safety policies and procedures, or you simply would like to understand more about individual responsibilities that could give rise to criminal liability, please contact Mark Thompson. You can also register for DWF's Crisis & Incident Management Service to ensure that you have 24/7 support in the event of an incident within the workplace.