Directors, governors, trustees and officers across the health sector now have a new template for their corporate and individual duties surrounding health and safety. David Sinclair explains the new guide, which from next April is likely to play a fundamental role in prosecutions for corporate manslaughter

When new legislation on corporate manslaughter comes into force in April, the guide Leading Health and Safety at Work: leadership actions for directors and board members is likely to be brought to the attention of jurors by prosecutors when determining whether there have been serious failings in health and safety at board and senior management level.

If those failings are deemed to have been a substantial element in a person's death, the offence of corporate manslaughter may be committed.

Published by the Institute of Directors and the Health and Safety Commission, the new guide contains a four-point agenda for embedding essential health and safety principles in an organisation and applies to all levels of senior management in the private, public and third sectors.

To summarise, the guide sets out three essential principles, which support good health and safety practice:

  • strong and active leadership from the top;

  • worker involvement;

  • assessment and review.

The guide's four-point agenda consists of 'core actions' that relate directly to the organisation's legal duties. These include:

  • planning;

  • delivering;

  • monitoring;

  • reviewing.

It also provides a checklist that allows directors to check their status as leaders in health and safety.

The contents are likely to be put to the jury in future corporate manslaughter prosecutions as evidence of the standards of health and safety management that directors are required to achieve.

The guide is also likely to feature prominently in the prosecution of individual directors, secretaries and similar officers who can be prosecuted under section 37 of the Health and Safety at Work Act 1974 where a breach of health and safety law by an organisation is attributable to their consent, connivance, or due to their neglect.

There have been very few successful prosecutions of directors for breaches of section 37 of the act due to it being extremely difficult for the prosecution to prove the director knew or ought to have known that there were reasonably practicable steps that they could have taken but instead chose to ignore.

In the recent case of R v E, the Court of Appeal held that the standard used for determining neglect in breaches of section 37 has been too high and that the correct standard of proof to be determined in establishing neglect on the part of a director or manager is:

  • What was the state of fact that required action to be taken?

  • Was the individual director aware or should they have been aware of those facts?

  • What appropriate investigation ought the director to have made to establish those facts?

The Court of Appeal's ruling now makes it easier for the Health and Safety Executive to bring section 37 prosecutions against directors and senior managers.

Implications for directors

While the guide has no power in law, its provenance means it is likely to be regarded as authoritative by the courts when determining whether or not a director is guilty of a breach of section 37, or whether an organisation is guilty of corporate manslaughter.

Although the guide consists of only 10 pages and does not impose any new duties on directors, it does focus on organisations' and directors' existing health and safety duties, including those relating to directors' training.

It is likely that the police and Health and Safety Executive will put the checklist questions to directors in interview.

Unless organisations and individuals can prove they are complying with the guide, they face this non-compliance being put to the magistrates, the judge or the jury in any subsequent prosecution.

The guide should be used by all directors, governors, trustees, officers and their equivalents to review their health and safety management system and confirm that they can comply with all requirements of the checklist.

For more information on compliance, visit www.hempsons.co.uk or e-mail healthandsafety@hempsons.co.uk