This is the next in the series of blogs for the Directors Friend Blog.
One area of law that impacts upon the duties of directors that appears overlooked is that of the personal liability and potential loss of liberty suffered by directors of companies in breach of The Health and Safety at Work Act 1974 (the “Act”).
The national regulator for work place health and safety is the Health and Safety Executive (“HSE”).
Investigations and prosecutions of individuals for safety related breaches are increasing. The fines imposed upon companies and individuals can be expensive.
Who can be prosecuted?
A wide range of entities and individuals can be prosecuted to include limited companies, individuals and directors or senior managers. Section 37 of the Act states:
“Offences by Bodies Corporate
here an offence under any relevant statutory provisions committed by a body corporate is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, any director (emphasis added), manager, secretary or other similar officer of the body corporate or a person who is purporting to act in such capacity, he as well as the body corporate shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly”
Case Summary of a prosecution by the HSE:
In a recent press release the HSE confirmed that a Rochdale based car repair company and its director were fined after failing to comply with Improvement Notices (“IN”) issued by the HSE.
Rochdale MOT Centre Limited (the “Company”) and its director a Nazar Hussain (the “Director”) failed to comply with three INs. The INs required the thorough examination of three two-post vehicle lifts by specified dates in the IN. These offences were considered by Manchester Magistrates Court on 10 June 2016.
Section 33(1)(g) of the Act makes it an offence for a person:
“…to contravene any requirement or prohibition imposed by an improvement notice or a prohibition notice…”
The Company and the Director of the Company pleaded guilty to breaching this section of the Act. They were ordered to pay fines of £1,500.00 and £3,000.00 respectively. In addition, both defendants were ordered to pay the full prosecution costs in the sum of £15,609.14.
Comment by the HSE Inspector:
The HSE Inspector, Sarah Taylor said that:
“This case highlights the impact of HSE’s work, ensuring duty holders are held to account for their failings and taking the appropriate action to ensure workers are safe.
All workers have the right to return home from work safe and healthy, but the Company and Director (emphasis added) in this case placed employees at risk of harm by failing to address concerns raised by HSE Inspectors.”
A Director Disqualification?
The Magistrates Court would likely have had a jurisdiction under Section 2 of the Company Director Disqualification Act 1986 to disqualify the Director upon conviction of the offence under the Act which may have resulted in a maximum period of director disqualification of up to 5 years.
It would appear fortunate for the Director that he was not also disqualified as a company director and therefore possibly barred from continuing to trade his business. Although there are other options available.
It can be seen that the duties of directors can extend in to areas that directors of companies wouldn’t necessarily consider such as health and safety law at issue here. The Directors Friend says that the well-advised director would be wise to consider their duties and obligations under the Act bearing in mind the potential personal liability and possible director disqualification action that can arise following a prosecution and conviction of that individual director personally.
A final thought:
Sometimes directors may have insurance policies that will likely cover defence legal costs for these kinds of actions. However, the Directors Friend says that any fine imposed upon a company following a conviction certainly will not be. As a general principle, it is against public policy to be able to insure against a criminal act. Similarly, where a Court orders the defendant to pay the prosecution’s reasonable costs in bringing a case, these costs are rarely covered by business insurance and may have to be funded by the business/individual themselves.
So, it is even the case that if you have protected yourself by way of taking out an insurance policy that is not a panacea to pay off all or any liability that the company or you as a director may face under the Act.
What to do now:
If you are faced with:
- Potential personal liability in your capacity as a director under the Act;
- Director disqualification; and / or
- All other forms of personal liability in your capacity as a director
then talk to me today on +44(0) 01992 558411.
That is in order to protect your position without delay. The earlier that you speak with me the more than a can likely help.
I am a Hertfordshire/London based solicitor and a full member of both The Insolvency Lawyer’s Association and The Association of Business Recovery Professionals.
Until the next time …
THE DIRECTORS FRIEND