Hard cell for company directors | 24 November 08

COMPANY directors and managers could find themselves behind bars under new laws on accidents in the workplace, a leading law firm has warned.

From January next year, individuals convicted of a wide range of offences under health and safety legislation will be liable to be sent to prison for up to two years.

Lawyers at Ward Hadaway say that while changes to the law on corporate manslaughter earlier this year have been well publicised, the introduction of the Health and Safety (Offences) Act 2008, which becomes law on January 16 2009, has slipped by almost unnoticed.

However, while corporate manslaughter is likely to apply in only a handful of cases, the powers of the new act will be available to the courts for nearly all breaches of health and safety law.

Stephen Campbell, partner and head of environment at Ward Hadaway, said: “Imprisonment is now an option, not just in cases where death has resulted, but also in relation to any prosecutable accident or dangerous situation.

“Numerous other regulatory offences - for example those relating to waste disposal or food safety - have for many years carried a potential prison sentence.

“However, health and safety offences are unique in that they are the only regulatory crimes where a reverse burden or proof applies. In other words, once someone is hurt in an accident then the employing organisation must prove their innocence.”

Individuals who could find themselves in court include sole traders or partners in an employing organisation who could be prosecuted for the substantive offence of, for example, failing to ensure the injured party’s health and safety.

Mr Campbell said: “Until now, that person would only have been at risk of a financial penalty. In future, whether a case is heard in the Crown Court or Magistrates’ Court, the court will have the option of sending that person to prison."

In larger organisations or companies, senior figures such as directors, company secretaries or managers could find themselves in court – and not necessarily for something they have directly done.

The Act allows regulators to prosecute such senior figures where an offence by the company has been committed with their ‘consent, contrivance or neglect’.

Mr Campbell explained: “The courts have held that a director can be convicted of a ‘neglect’ offence merely where it is shown that he or she failed to ensure that something was done that should have been done, even when the individual knew nothing of the material facts.

“Thus ignorance of unsafe working practices or deviations from company systems, for example, will be of no assistance to a director or manager charged with a ‘neglect’ offence if the court is satisfied that it is something that that person ought to have known about.”

While prosecutions of directors and managers have been few and far between in the past, Mr Campbell said the introduction of the new legislation may lead to a steep rise in court cases – and should force companies to take even greater care in the future.

He explained: “With this change in the law, even a suspended prison sentence is likely to generate considerable publicity, and one has to wonder whether this might encourage a significant increase in the number of prosecutions in future.

“Directors and managers must, more than ever, be vigilant to ensure that health and safety is given the highest priority within their field of responsibility.”

* For more information on health and safety advice from Ward Hadaway, please click here.