The Principal Duties
The Offence: Breaching these duties

These "duty holders" are usually companies or organisations rather than individuals.

These duties are not absolute duties; that is to say that the duty holders do not have to do everything to comply with these duties. They have to take "reasonable and practicable" measures to comply with the duties.

Regulations - made under powers of the Act - also impose duties upon employers and others. These duties tend to be of a more specific nature and can be absolute in nature.

The 1974 Act also imposes a duty upon individual "employees" to "take reasonable care" for the health and safety of himself and of other persons who may be affected by his acts of omissions at work" An employee is anyone employed by the company and can be a shop-floor worker, a manager or even an executive director

It is an offence for a "duty holder" to fail to comply with these duties. It is not necessary for the prosecuting bodies to prove that "reasonable care" or "reasonable and practicable" measures were taken. It is for the accused to prove that they in fact took "reasonable care" or "reasonable and practicable" measures to comply with the duty.

Where a company has committed an offence, a director or senior manager can be prosecuted if it can be shown that they had either agreed to the offence or turned a blind eye to it or that the corporate offence was the result of any neglect on their part

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Offences under the 1974 Act

The Principal Duties
Section 2-7 of the Health and Safety at Work Act 1974 sets out the principal health and safety duties that are imposed upon organisations and individuals.

Section 2(1) is the main one: "it shall be the duty of every employer to ensure so far as is reasonably practicable, the health, safety and welfare at work of all his employees."

The duties in section 2-6 have to be complied with "so far as is reasonably practicable"

• Organisations: As noted above, employers, occupiers, manufacturers, suppliers etc are in most cases companies and if not companies, other forms of organisations. They are rarely individuals.
  

  This can be seen clearly seen if we consider the situation of 'private companies'. Most businesses these days are companies. Companies are organisations that have been 'incorporated'. The process of incorporation creates three separate 'legal persons' - the main and most important one is the 'company' itself. This is a distinct legal entity entirely separate from the 'directors' (the individuals who manage the company) and 'shareholders' (the people who own the company).

  It is the company itself which (a) 'owns' the business' and (b) is the 'employer' the 'occupier' the 'manufacturer' etc.

  It is important to note this since it is often assumed that company directors have duties under health and safety law. This only the case in a very limited sense. To read about the issue of Director duties, click here

• Reasonably Practicable: How is "reasonably practicable" defined? This is not defined in the Act itself. The most authoritative definition of what these words mean is found in the 1949 case of Edwards v National Coal Board:

  "'Reasonably practicable' is a narrower term than physically possible' and seems to me to imply that a computation must be made by the owner, in which the quantum of risk is placed on one scale and the sacrifice involved in the measures necessary for averting the risk (whether in money, time or trouble) is placed on the other; and that if it can be shown that there is a gross disproportion between them - the risk being insignificant in relation to the sacrifice - the defendants discharge the onus on them. Moreover the computations falls to be made by the [duty holder] at a point of time anterior to the accident. The questions he has to answer are: (a) what measures are necessary and sufficient to prevent any breach … (b) are these measures reasonably practicable?" 1

  In the more recent case of Readmans Ltd v Leeds City Council the Judge stated that:

"companies do not have to guarantee absolute safety, if such a thing is achievable, not do they have to show that they have done what is practicable, that is to say, all that is physically possible. What they would have to establish is that they have done what is reasonably practicable to ensure that such risks as exist are avoided."

• Employees: Section 7 is conventionally seen as simply imposing duties upon shop-floor workers, however managers and even Executive Directors are employees. It would therefore seem that section 7 imposes the same duty upon them as it does with shop-floor workers.

The Offence: Breaching these duties
Section 33 of the 1974 Act makes it an offence to "fail to discharge" any of the duties imposed by section 2 to 7 above.

Burden of Proof: Section 40 of the Act reverses the usual requirement that it is for the prosecution to prove the accused committed all elements of the offence beyond reasonable doubt. It states that where a duty holder is accused of an offence, it is not necessary for the prosecution to actually prove that the company failed to take all reasonable and practicable measures; it is for the company to prove to the court that it was "not reasonably practicable to do more than was in fact done by the company to satisfy the duty imposed upon it."

In effect, however the prosecutor usually will have to have enough evidence to prove that the duty holder had failed to take reasonable and practicable measures.

Sentencing: Prosecutions for these cases can take place in either the magistrates court or the Crown court (where a jury will sit). Sentencing can also take place in either court. A conviction in the magistrates court can result in a maximum fine of £20,000. In the Crown Court - the judge can impose any level of fine. It is also possible - in relation to convictions for these and all other offences - for a court to impose a remedy order. This could be in addition or as an alternative to any fine imposed. To find out more information on sentencing issues, click here.

Prosecuting Company Directors/Managers
A director or manager of a company can be prosecuted through two routes.

1. Breach of Section 37
Section 37 of the 1974 Act allows a "director, manager, secretary or other similar officer" to be prosecuted where:

• the company has committed an offence and
• this offence was the result of either:
  • "consent" or "connivance" on the part of the individual, or
  • "any neglect" on their part.

To see section in full, Click Here. It has been held that:

• the only people who can be prosecuted under section 37 are "those who are in a position of real authority, the decision-makers within the company who have both the power and responsibility to decide corporate policy and strategy. It is to catch those responsible for putting proper procedures in place; it is not meant to strike at underlings."2
  
  This means that whilst directors can be prosecuted under this section, it only applies to the most senior managers within a company.
  
  

• a person consents to the commission of an offence when he is 'well aware of what is going on and agrees to it'3 Agreement would need to be shown by some 'positive action ... usually no doubt in words, perhaps in writing, if gestures were absolutely clear, it would conceivably be by gesture but, in my view, careful proof of such an intention would be required.' 4

  Consent therefore requires proof of both awareness and agreement

• A director connives in an offence when 'he is equally well aware of what is going on but his agreement is tacit, not actively encouraging what happens but letting it continue and saying nothing about it.'

  Connivance simply requires proof of awareness (i.e 'turning a blind eye')

• It should be noted that, in relation to 'consent' and 'connivance' it is not necessary for the person to be aware that the particular conduct (about which he is aware) actually constitutes a criminal offence. So a director, who is aware of that a particular employee or group of employees has not been provided training can be prosecuted even if he is unaware that the company's failure to provide training constitutes an offence

• For there to be neglect there needs to be a 'duty'. The 1974 Act itself does not itself impose any explicit duties on directors (to see more on the issue of director duties, click here) however it has been held that for the purposes of section 37, the duty does not have to be a 'legal' duty.5 Therefore the duty can be imposed by the company's safety policy or by some other internal company instructions. It can also result from the terms of a 'contract of employment'.

2. Breach of Section 7

Most directors are "executive directors" - that is to say they are not only 'officers of the company' but also 'employees'. Section 7 imposes a duty upon employees - which would therefore include executive directors (and indeed senior managers) "to take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions at work." Section 33 makes it at an offence to breach this duty.

Prosecutions for breaches of section 7 are usually taken only against 'shop floor' workers or junior managers and not senior managers or directors. There, however appears no reason why they also can not be prosecuted under section 7 - at least in relation to their decisions and conduct as "employees".

It should be noted that Section 310(3) of the Companies Act allows companies to ensure for the legal costs of defending a company director.

Offences for Breach of Regulations

The Regulations
Section 15 of the 1974 Act gives the Minister the power to make 'regulations' on a wide range of health and safety matters. Most of these regulations impose duties upon employers and others which are more specific in nature compared with the general duties contained in the Act itself. These duties have the same effect as those contained in Acts of Parliament - even through they have not been voted on by the Houses of Parliament.

The offence
Section 33(1)(c) makes it an offence to "contravene any health and safety regulations or any requirement or prohibition imposed under any such regulations"

Sentencing: If convicted in the magistrates court the fine can only result in a maximum fine of £5000. Prosecution can also takes place in the Crown court where the Judge can impose any level of fine.

Other Offences under the Act
The 1974 Act creates a number of other offences . There are four categories :

• Prosecution for the offences below can only take place in the magistrates court and result in a maximum fine of £5000
  • preventing or attempting to prevent a person from appearing before an inspector or
    answering any question to which an inspector may require an answer
  • intentionally obstructing an inspector in the exercise of his powers;
  • falsely pretending to be an inspector
    
    
• Prosecution for the offence below can result in a prosecution in both the magistrates or Crown Court. A conviction in a magistrates court can result in either imprisonment for a term not exceeding six months or a fine not exceeding £20,000. A conviction in a Crown court can result in a term of imprisonment of up to two years or/and an unlimited fine
  • contravening any requirement or prohibition imposed by an improvement or a prohibition notice
    
    
• Prosecution for the offences below can result in a prosecution in both the magistrates or Crown Court. A conviction in a magistrates court can result in a fine not exceeding £5,000. A conviction in a Crown court can result in an unlimited fine.
  • to make a statement which he knows to be false or recklessly to make a statements
    which is false where the person is required to give such information to an inspector.
  • to intentionally make a false entry in any register, book, notice or other document
    which they are required to keep by statute
    
    
• Prosecution for these offences can result in a prosecution in both the magistrates and crown court. Conviction in the magistrates court can result in a fine not exceeding £5000. Conviction in the Crown Court can result in any level or fine or an imprisonment for a term not exceeding two years.
  • Undertaking an activity which requires a license
  • Contravening the terms of a license

To see a list of all those offences which allow a sentence of imprisonment, click here.

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General duties

Section 2

(l) It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health. safety and welfare at work of all his employees.

(2) Without prejudice to the generality of an employer's duty under the preceding subsection, the matters to which that duty extends includes in particular-

(a) the provision and maintenance of plant and systems of work that are, so far as is reasonably practicable, safe and without risk to health;

(b) arrangements for ensuring, so far as is reasonably practicable, safety and absence of risk: to health in connection with the use, handling, storage and transport of articles and substances;

(c) the provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of his employees;

(d) so far as is reasonably practicable as regards any place of work under the employer's control, the maintenance of it in a condition that is safe and without risks to health and the provision and maintenance of means of access to and egress from it that are safe and without such risks;

(e) the provision and maintenance a working environment for his employees that is. so far as is reasonably practicable, safe, without risks to health. and adequate as regards facilities and arrangements for their welfare at work.

(3) Except in such cases as may be prescribed, it shall be the duty of every employer to prepare and as often as may be appropriate revise a written statement of his general policy with respect to the health and safety at work of his employees and the organisation and arrangements for the time being in force for carrying out that policy, and to bring the statement and any revision of it to the notice of all his employees.

(4) Regulations made by the Secretary a State may provide for the appointment in prescribed cases by recognised trade unions (within the meaning of the regulations) of safety representatives from amongst the employees, and those representatives shall represent the employees in consultations with the employers under subsection (6) below and shall have such other functions as may be prescribed.

(5) Regulations made by the Secretary of State may provide for the election in prescribed cases by employees a safety representatives from amongst the employees. and those representatives shall represent the employees in consultations with the employers under subsection (6) below and may have such other functions as may be prescribed.

(6) It shall be the duty a every employer to consult any such representatives with a view to the making and maintenance of arrangements which will enable him and his employees to co-operate effectively in promoting and developing measures to ensure the health and safety at work of the employees. and in checking the effectiveness of such measures.

(7} In such cases as may be prescribed it shall be the duty of every employer, if requested to do so by the safety representatives mentioned in subsections (4) and (5) above, to establish, in accordance with regulations made by the Secretary of State, a safety committee having the function of keeping under review the measures taken to ensure the health and safety at work of his employees and such other functions as may be prescribed.

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Section 3

(1) It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.

(2) It shall be the duty of every self-employed person to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that he and other persons (not being his employees) who may be affected thereby are not thereby exposed to risks to their health or safety.

(3) In such cases as may be prescribed. it shall be the duty of every employer and every self-employed person. in the prescribed circumstances and in the prescribed manner, to give to persons (not being his employees) who may be affected by the way in which he conducts his undertaking the prescribed information about such aspects of the way in which he conducts his undertaking as might affect their health or safety.

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Section 4

(l) This section has effect for imposing on persons duties in relation to those who-

(a) are not their employees; but

(b) use non-domestic premises made available to them as a place of work or as a place where they may use plant or substances provided for their use there.

and applies to premises so made available and other non-domestic premises used in connection with them.

(2) It shall be the duty of each person who has. to any extent control of premises to which this section applies or of the means of access thereto or egress therefrom or of any plant or substance in such premises to take such measures as it is reasonable for a person in his position to take to ensure, so far as is reasonably practicable, that the premises, all means of access thereto or egress therefrom available for use by persons using the premises, and any plant or substance in the premises or, as the case may be, provided for use there, is or are safe and without risks to health.

(3) where a person has, by virtue of any contract or tenancy, an obligation of any extent in relation to-

(a) the maintenance or repair of any premises to which this section applies or any means of access thereto or egress therefrom; or

(b) the safety of or the absence of risks to health arising from plant or substances in any such premises;

that person shall be treated. for the purposes of subsection (2}above, as being a person who has control of the matters towhich his obligation extends.

(4) Any reference in this section to a person having control of any premises or matter is a reference to a person having control of the premises or matter in connection with the carrying on by him of a trade, business or other undertaking (whether for profit or not).

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Section 5

(1) It shall be the duty of the person having control of any premises of a class prescribed for the purposes of section l(l)(d) to use the best practicable means for preventing the emission into the atmosphere from the premises of noxious or offensive substances and for rendering harmless and inoffensive such substances as may be so emitted.

(2) The reference in subsection (1) above to the means to be used for the purposes there mentioned includes a reference to the manner in which the plant provided for those purposes is used and to the supervision of any operation involving the emission of the substances to which that subsection applies.

(3) Any substance or a substance of any description prescribed for the purposes of subsection (1) above as noxious or offensive shall be a noxious or, as the case may be, an offensive substance for those purposes whether or not it would be so apart from this subsection.

(4) Any reference in this section to a person having control of any premises is a reference to a person having control of the premises in connection with the carrying on by him of a trade, business or other undertaking (whether for profit or not) and any duty imposed on any such person by this section shall extend only to matters within his control.

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Section 6

(1) It shall be the duty of any person who designs, manufactures, imports or supplies any article for use at work-

(a) to ensure, so far as is reasonably practicable. that the article is so designed and constructed as to be safe and without risks to health when properly used;

(b) to carry out or arrange for the carrying out of such testing and examination as may be necessary for the performance of the duty imposed on him by the preceding paragraph;

(c) to take such steps as are necessary to secure that there will be available in connection with the use of the article at work adequate information about the use for which it is designed and has been tested, and about any conditions necessary to ensure that, when that use, it will be safe and without risks to health.

(2) It shall be the duty of any person who undertakes the design or manufacture of any article for use at work to carry out or arrange for the carrying out of any necessary research with a view to the discovery and, so far as is reasonably practicable, the elimination or minimisation of any risks to health or safety to which the design or article may give rise.

(3) It shall be the duty of any person who erects or installs any article for use at work in any premises where that article is to be used by persons at work to ensure, so far as is reasonably practicable, that nothing about the way in which it is erected or installed makes it unsafe or a risk to health when properly used.

(4) It shall be the duty of any person who manufactures, imports or supplies any substance for use at work-

(a) to ensure, so far as is reasonably practicable, that the substance is safe and without risks to health when properly used;

(b) to carry out or arrange for the carrying out of such testing and examination as may be necessary for the performance of the duty imposed on him by the preceding paragraph;

(c) to take such steps as are necessary to secure that there will be available in connection with the use of the substance at work adequate information about the results of any relevant tests which have been carried out on or in connection with the substance and about any conditions necessary to ensure that it will be safe and without risks to health when properly used.

(5) It shall be the duty of any person who undertakes the manufacture of any substance for use at work to carry out or arrange for the carrying out of any necessary research with a view to the discovery and, so far as is reasonably practicable, the elimination or minimisation of any risks to health or safety to which the substance may give rise.

(6) Nothing in the preceding provisions of this section shall be taken to require a person to repeat any testing, examination or research which has been carried out otherwise than by him or at his instance, in so far as it is reasonable for him to rely on the results thereof for the purposes of those provisions.

(7) Any duty imposed on any person by any of the preceding provisions of this section shall extend only to things done in the course of a trade, business or other undertaking carried on by him (whether for profit or not) and to matters within his control.

(8) Where a person designs, manufactures, imports or supplies an article for or to another on the basis of a written undertaking by that other to take specified steps sufficient to ensure, so far as is reasonably practicable, that the article will be safe and without risks to health when properly used, the undertaking shall have the effect of relieving the first-mentioned person from the duty imposed by subsection (1)(a) above to such extent as is reasonable having regard to the terms of the undertaking.

(9) Where a person ("the ostensible supplier") supplies any article for use at work or substance for use at work to another ("the customer") under a hire-purchase agreement, conditional sale agreement or credit-sale agreement, and the ostensible supplier-

(a) carries on the business of financing the acquisition of goods by others by means of such agreements; and

(b) in the course of that business acquired his interest in the article or substance supplied to the customer as a means of financing its acquisition by the customer from third person ("the effective supplier ").

the effective supplier and not the ostensible supplier shall be treated for the purposes of this section as supplying the article or substance to the customer, and any duty imposed by the preceding provisions of this section on suppliers shall accordingly fall on the effective supplier and not on the ostensible supplier.

(10) For the purposes of this section an article or substance is not to be regarded as properly used where it is used without regard to any relevant information or advice relating to its use which has been made available by a person by whom it was designed, manufactured, imported or supplied.

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Section 7

It shall be the duty of every employee while at work-

(a) to take reasonable care for the health and Safety of himself and of other persons who may be affected by his acts or omissions at work; and

(b) as regards any duty or requirement imposed on his employer or any other person by or under any of the relevant statutory provisions, to co-operate with him so far as is necessary to enable that duty or requirement to be performed or complied with.

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Section 37

(1) where an offence under any at the 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, manager, secretary or other similar officer of the body corporate or a person who was purporting to act in any 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.

(2) Where the affairs of a body corporate are managed by its members, the preceding subsection shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.

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Imprisonment Offences

The following offences can result in a sentence of imprisonment.

• contravening any requirement or prohibition imposed by an improvement or a prohibition notice;
• an offence consisting of acquiring or attempting to acquire, possessing or using an explosive article or substance in contravention of statutory duties;
• Undertaking an activity which requires a license or contravening the terms of a license;
• failure to comply with a court 'remedy' order;

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1. [1949] 1 KB 704 at 712
2. R V Boal [1992] 2 WLR 980
3. Huckerby V Elliott [1970] 1 All ER189 at p.194
4 Bell v Alfred Franks & Bartlett Co. Ltd [1980] 1 All ER 356 at pp 360E-F and 362A.
5. Armour v Skeet [1977] SLT 71.