Sentencing Council Guidelines - Health & Safety - Directors’ Liability

For organisations sentenced after 01 February 2016, for breaches of sections 2 and 3 of the Health & Safety at Work Act 1974, the Sentencing Council Guidelines for Health & Safety, Corporate Manslaughter and Food/Hygiene Offences has received much publicity and should not be lost on directors, who may find themselves subject to the new guidelines where an offence is proven to have been committed with the consent, connivance or attributable to the neglect of that person. This equally applies to any manager, secretary or other similar officer of a company or a person who was purporting to act in that capacity.

On conviction for breach of a section 2, 3 and/or 7 offence under the HSW 1974, an individual may face an unlimited fine and/or two years in custody on indictment or where he or she is tried summarily, an unlimited fine and/or six months in custody.

When deciding the sentence in such cases, the Court will consider whether the custody threshold has been passed – in essence that the offence was so serious that a fine alone or community sentence cannot be justified.

There is no fixed rule on what a prosecution has to prove in terms of consent, connivance or neglect since the circumstances would vary from cases to case however “the question would always be whether the officer in question should have been put on inquiry so as to have taken steps to determine whether or not the appropriate safety procedures had been in place” (R v Chargot (t/a Contract Services) [2008] All ER (D).

Consent is relatively straightforward with the prosecution required to prove that the officer knew the material facts constituting the offence by the company and agreeing to the business continuing on the basis of those facts. Similar to connivance or neglect, consent can be inferred and in ‘Chargot’, the Court of Appeal said that “Where it is shown that a body corporate had failed to achieve or prevent the result that those sections [s.2 and s.3 of HSW 1974] contemplated, it would be a relatively short step for the inference to be drawn that there had been connivance or neglect on his part if the circumstances under which the risk had arisen under the control of the officer’.

This will be of greater concern to SMEs whose directors may be limited in number and yet are required by scale to oversee and control several facets of the business.

One of the key points which has always been the case is that health and safety offences are concerned with failures to manage risks and do not require the proof that an offence caused any actual harm. Therefore, whilst the occurrence of actual harm is a factor within the guidelines, ensuring compliance is key to avoid succumbing to the potential for a prosecution and the far reaching effects of the new sentencing guidelines.