Section 37: Prosecuting senior management for OH&S offences committed by someone else

It is no secret that being in a senior management role in a business has its fair share of additional duties and responsibilities. However, you may not be aware that not only the employer but also directors and senior managers can be held accountable for health and safety incidents at the workplace caused by someone else they are responsible for.

The prospect of facing a legal suit for something you haven’t done yourself is quite daunting. To help you minimise the risk of liability due to ignorance, we will discuss the section of the law that covers this issue, as well as the scenarios when a health and safety manager can be prosecuted for others’ offences and also – how to protect yourself from prosecution.

Health and Safety at Work Act: The Employer’s Responsibilities

Before we begin investigating this issue, we need to familiarise ourselves with the Health and Safety at Work Act 1974 (HASAWA) – the UK’s overarching legislation that regulates health and safety at the workplace. According to HASAWA, it is the employer’s legal responsibility to ensure the health and safety of all employees, visitors and members of the public who might be present at the workplace.

Your OH & S (Occupational Health and Safety) duties as an employer include creating a safe working environment, making sure all existing work practices and procedures are safe, as well as ensuring that any equipment or machinery used at the workplace is safe.

You are also required to oversee the risk management process within your organisation and ensure that risk assessments are carried out to identify, assess and control any potential risks at the workplace. Providing adequate training, communication and information about workplace hazards identification and accident prevention are also on your list of duties.

To do all of that successfully, it is important to assign responsible people within the business to implement the different health and safety procedures and to oversee their work. Any failure on their part could lead to your prosecution as you are also liable for the actions of your employees and your management team.

Your liability under Section 37 of the Health and Safety at Work Act

Section 37 of the Health and Safety at Work Act 1974 is the main focus of our article today. It looks at the concept of “secondary liability” meaning that it relates to a situation where the liable act was committed by a person within the business but the liability is shared with their superiors.

For Section 37 to apply the following conditions have to be met:

• that an offence has been committed under any of the relevant statutory provisions by a body corporate
• that the offence has been committed with the consent or connivance of or has been attributable to any neglect on the part of the accused
• that the person accused is a director, manager, secretary or other similar officer, or a person purporting to act in any such capacity, or a member of a body corporate whose affairs are managed by its members

Simply put, under the HASAWA, if you are in a position of power within the business and have authority to introduce changes to procedures, you can be held accountable for legal offences committed by the people who report to you if it is proven that you have had the power to prevent the offence.

This includes both situations where you have had previous knowledge of the facts and have agreed with the actions of your employee based on that knowledge, as well as if the offence has been committed as a direct result of your having neglected your duty to ensure the OH&S of the people who work under you.

Section 37 doesn’t attribute liability based on your job title, instead, it looks to establish that you (the accused) have had actual authority in the decision making that led to the offence.

How do you establish responsibility under Section 37?

If you are a director or a senior manager who has been accused of a health and safety offence committed within your organisation, to prove your secondary liability the prosecution has to establish that you:

• knew what was going on and agreed to it (consent)
• knew what was going on (connived)
• neglected their H&S duties and that directly led to the offence
• could have taken steps to prevent this but failed to do so
• instructed the person who committed the offence to do so
• pressured the person who committed the offence to do so for personal gain
• had (or ought to have had) knowledge of the issue
• had previously been made aware of the issue
• share the responsibility with other members of the management team

For you to be successfully prosecuted under Section 37, there has to be enough evidence to support the claim that you were in a position of responsibility under the existing management structure. At the evidentiary stage, it is also taken into consideration whether your prosecution would be considered fair and warranted by others.

What happens if you are found guilty?

Ignorance of the law and legislation can’t be used as a defence in a legal case under Section 37 of the Health and Safety at Work Act 1974 and if you are found guilty, you could be disqualified as a director under the Company Directros Disqualification Act 1986, or even face up to 2 years of jail time.

How can you protect yourself from prosecution?

To protect yourself from being liable to prosecution, it is of utmost importance to ensure that health and safety at the workplace is managed effectively. Some of the steps you need to take to ensure compliance with the law include:

• Introducing regular risk assessments
• Overseeing the implementation of the risk management process
• Reviewing and improving your risk management plan regularly
• Ensuring that all staff members have adequate OH&S training
• Communicating internal health & safety directives to all relevant parties
• Implementing clear structure and responsibilities for H&S within the business
• Keeping a record of all H&S risk assessments and management processes for at least 10 years

How can RiskMach help?

RiskMach offers a complete, all-in-one solution to the entire risk assessment and risk management process, ensuring compliance with all applicable health and safety standards in your industry.

Thanks to our digital, in-app platform, overseeing all health and safety activities has never been easier – you can do it from any device, anywhere in the world with real-time access to information about new risks, implementation of controls, photo evidence and detailed reports on all your assets.

With its incredible collaboration capabilities, RiskMach helps you keep everyone involved and informed about the safety risks in the workplace, ensuring that industry best practices are met.

For more information on our app, get in touch with us and find out how we can assist you in achieving health and safety compliance at the workplace.