The case for putting senior managers in the dock

More directors and managers are being prosecuted for health and safety offences. Why is this and will it lead to safer workplaces?

 In April this year, the Sentencing Council, which produces advice on sentencing for courts in England and Wales, published an impact assessment reviewing new guidelines for health and safety offences that took effect in February 2016. It reported that since 2011 the number of individuals prosecuted for health and safety offences has steadily increased and that in 2017 more than a quarter of those convicted received an immediate or suspended prison sentence.

While the assessment does not identify the proportion of these individuals who had management roles, it is known that the focus has shifted away from frontline employees. In the year to 31 March 2016, three times as many directors and managers were prosecuted as had been in the previous year.

One case that concluded in 2018 provides a good example of this change of emphasis.

The prosecution followed a fatal accident in 2010 at waste company Gaskells (North West). An employee, Zbigniew Galka, entered a baler used to compact paper and cardboard to remove a blockage. He was able to do this without isolating the machine and was crushed in the compaction chamber.

A Health and Safety Executive investigation found the interlock mechanism that should have prevented the baler from operating when the chamber door was open had been disarmed by a maintenance engineer, Michael Cunliffe, shortly before the incident. Cunliffe had emailed management about the modification, which was to bypass a faulty switchboard and keep production running.

Gaskells (North West) and Cunliffe pleaded guilty to health and safety offences, with the company being fined £700,000 and Cunliffe receiving a four-month prison sentence suspended for two years.

However, members of management were also prosecuted by HSE for safety offences. Managing director Jonathan Gaskell pleaded guilty and received an immediate prison term of eight months. Paul Jukes, the transport and operations manager, was prosecuted on the basis that he had taken over the responsibilities of the company’s former health and safety manager after they were made redundant and that he knew about the modification. Jukes denied both charges, but was convicted at trial and jailed for nine months.

HSE’s enforcement policy statement says that during investigations the executive will consider the management arrangements and the role played by individual directors and managers and will prosecute them where it considers this is warranted. The sentencing guideline observes that health and safety offences are concerned with failures to manage risks to health and safety.

Arguably, there is now more of an expectation from the public that where a health and safety incident has resulted in serious injury or death ‘somebody in authority’ should be brought to book. When a company is prosecuted, no one individual stands in the dock. Understandably for the bereaved and injured, this can be distressing. However, it is important to appreciate that health and safety prosecutions of individuals are not about ordinary negligence, but criminal failings on the part of the accused.

Experience shows that most health and safety failures – unlike the Gaskells (North West) case – happen because a number of things go wrong and when they come together they lead to a bad event. They occur not through commission, but more usually through a series of unintended omissions.

There can sometimes be a temptation on the part of investigators to look at senior managers with health and safety responsibilities and to equate the bad event with them having done something seriously wrong. While prosecutions should be there to bring home the importance of managing health and safety, if they are perceived as being unfair there is a danger this could discourage people from taking on such roles.

How can directors and managers protect themselves?

If investigated, it is important to be able to explain exactly what your role and responsibilities are (ideally by reference to a job description) and how safety is managed. This usually entails explaining the systems in place, how competency of the workforce is achieved and the processes for monitoring and reviewing both systems and competency.

It is also important to obtain independent legal advice at an early stage. In the Gaskells (North West) prosecution, Jukes was not interviewed by HSE until two years after the fatality, at which point he provided a detailed prepared statement denying responsibility for health and safety. However, when he had been interviewed by the company’s lawyers as part of its accident investigation, he had accepted that it was his responsibility. The investigation report was disclosed to HSE, who subsequently relied on Jukes’s earlier statement at trial.

Whether prosecuting directors and senior managers personally will actually improve health and safety remains to be seen. However, given the focus of the regulator, now is the time for those with management responsibilities to review their company’s safety management systems and the competencies of its staff.

Mike Appleby is a partner at Fisher Scoggins Waters LLP and co-author of ‘HSE and Environment Agency Prosecution: The New Climate’ published by Bloomsbury Professional. He is also a speaker on the IET’s Electrical Safety Management Course.

Source – E&T