This page is a briefing on the prosecution of individuals for health and safety offences and in particular looks at guidance that the HSE has produced for its inspectors in July 2003.

This is the first time that the HSE has produced comprehensive guidance to its inspectors on this issue and it is an important document.

The HSE guidance is itself not easy to read and this briefing sets out the key points in a manageable form. However, if you have a particular interest in this area, you should read the whole document. To do so, click here to download it (word).

This is the only website that allows you access to this document. It is not yet accessible on the HSE’s site.

Context of the HSE Guidance
The context for the production of this guidance is the publication in January 2002 of the HSC’s new enforcement policy statement. This stated that:

‘… enforcing authorities should identify and prosecute or recommend prosecution of individuals if they consider that a prosecution is warranted. In particular, they should consider the management chain and the role played by individual directors and managers, and should take action against them where the inspection or investigation reveals that the offence was committed with their consent or connivance or to have been attributable to neglect on their part and where it would be appropriate to do so in accordance with this policy. Where appropriate, enforcing authorities should seek disqualification of directors under the Company Directors Disqualification Act 1986.’

It has taken over a year and a half – since the publication of the Enforcement Statement - for the HSE to publish this guidance to inspectors.

Historically the HSE has always focused on the conduct of the company and only prosecuted individuals in exceptional circumstances. It should be noted for example that the prosecution of Gerald Corbett (Former Chief Executive of Railtrack plc) in relation to the Hatfield disaster is the first time the HSE has ever prosecuted a director of a large company.

To look at HSE’s record in the convictions of directors and managers, click here.

This HSE guidance does not mean that the HSE is focusing on individuals at the expense of the company. Rather, it could be said that it reflects increased recognition on the part of the HSE of the importance of individual accountability.

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Who are the "individuals" that the HSE is concerned about
By ‘individuals’, the HSE means principally, "Directors, managers, and employees".

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What Health and Safety Offences can individuals commit
There are two key offences that pertain to individuals.

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Evidential and public interest tests
The guidance emphasises that before any individual can be prosecuted for any of these offence HSE inspectors must be satisfied that:

This is no different to the tests that need to be considered when deciding on whether or not to prosecute a company. These are the two key tests set out in the Code of Crown Prosecutors that is published by the Crown Prosecution Service.

Para 8 of the HSE guidance states:

"You need to consider both whether we can prosecute, and whether we ought to prosecute. The questions are "Is there enough evidence to provide a ‘realistic prospect of conviction’?" (The Evidential Test) and "Would prosecution meet the principles of the EPS and be in the public interest?" (The Public Interest Test)."

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The Public Interest Test: When does the HSE consider that prosecution is warranted?
The HSE guidance makes clear that the ‘Public interest’ test is a particularly significant test in relation to deciding whether to prosecute individuals. Sufficient evidence to prosecute may well exist in numerous cases, but as far as the HSE is concerned, prosecution is only warranted in a limited number of situations.

In relation to each of the two offences, HSE guidance sets out a number of particularised factors that HSE inspectors should take into account when deciding whether or not to prosecute individuals - and these are set out below when discussing each offence.

However, the guidance makes a number of general points. Para 9 states that:

"In general, prosecuting individuals will be warranted where there are substantial failings by them, such as where they have shown wilful or reckless disregard for health and safety requirements, or there has been a deliberate act or omission that seriously imperilled their health/safety or the health/safety of others."

This is a very significant paragraph. It indicates that the HSE are imposing a requirement for evidence of a far higher level of criminality – than is actually required by the offences themselves - before they consider prosecution is warranted. Neither section 7 or 37 require evidence of "wilfulness", "recklessness", or "deliberateness".

The HSE justifies this approach by saying that companies operate through the actions of either/both their employees and directors, so that whenever a company commits an offence is is likely that there will be some personal failure on the part of individuals.

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Section 7
Section 7 states:

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Who are 'employees'?
Section 7 only applies to those individuals who are 'employees'. It should be noted that managers – at both a senior or junior level - are just as much employees as ‘shop-floor workers’. The guidance states that:

"When appropriate you should not hesitate to take action under Section 7 against managers and supervisors"

It goes onto state:

"You should bear in mind though that lower level managers are closer to the day-to-day activities of a company and you may therefore find it easier to obtain evidence against them. Where the principal failings were at a higher level then, in accordance with the principles in the EPS , your enforcement action should be targeted at that higher level, notwithstanding any comparative difficulty in obtaining evidence."

Company directors are also often 'employees' of the company. When they are employed, they are known as ‘executive directors’ (as opposed to non-executive directors) and section 7 can apply equally to them.

Executive directors will however have two different relationships with the company – one as an 'employee' and another as an ‘officer’ of the company (i.e their role at Board meetings). There is therefore an issue as to whether section 7 applies to executive directors only when they are conducting themselves as ‘employees’ rather than when they are conducting themselves as ‘company officers’.

HSE Guidance states

Directors/managers who are subject to section 37 may also be employees and therefore also subject to section 7. You have to judge which is more appropriate. In general this is determined by the role being fulfilled at the time. If he/she was acting as a director of the company and directing its affairs then section 37 should be used. If he/she was, in effect, acting as an employee and carrying out the company’s procedures in the same way as other employees then section 7 may be more appropriate. The facts of the case should determine which is appropriate and not whether one offence is easier or more convenient to prove.

Position of Crown Employees: Government departments and other government controlled organisations are ‘crown bodies’ – and as such can not be prosecuted as an employer or in any other capacity, for health and safety offences.

What is the position of those individuals who work for them? Section 48(3) of the Health and Safety at Work Act states that

"for the purposes of this part … persons in the service of the Crown shall be treated as employees of the Crown whether or not they would be so treated apart from this subsection."

Individuals who work for crown bodies – whatever their official employment status – can be treated as an employee for the purposes of section 7 of the 1974 Act.

And, importantly, since crown immunity only applies to organisations – not to individuals – they can therefore be prosecuted in the same way as any other individual.

The HSE guidance makes clear that HSE inspectors should apply the same tests when considering whether to prosecute individuals who are ‘crown employees’ compared to ordinary employees. It states (para 12)

"We do not apply different tests or criteria when we consider prosecuting Crown servants. All employees are treated the same. We do not prosecute Crown employees in circumstances where we would not prosecute employees of a non-Crown organisation, just because we cannot prosecute their employer. Equally, no personally culpable employee whose prosecution is warranted should escape prosecution simply because he/she is a Crown employee."

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What does "reasonable care" and "so far as is necessary" mean?
The HSE guidance to inspectors states that these terms " need to be considered in the context of the employer’s provisions."

This appears to mean that in assessing whether the conduct of an employee is reasonable or not, or whether the employee has done what was necessary or not, consideration has to be given to the extent to which the employer has been complying with its obligations to provide adequate training, supervision, safe systems of work etc.

So, in relation to "reasonable care", para 2 of Appendix 1 of the guidance provides the following example:

"For example, a machine operator who has received inadequate training might be considered to have acted reasonably in all the circumstances if he/she removes a guard from a machine and continues to use it, and this is the generally accepted and condoned practice in the company. In other circumstances the same act might be considered unreasonable, if the employee has received proper training, if the guard in question is sufficient, and if removal of guards is neither accepted nor condoned in the company."

In relation to the meaning of ‘so far as is necessary’, the guidance states that this "does not require employees to compensate for employers’ failure to make adequate provisions. This remains the responsibility of the employer."

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Public interest factors
The HSE guidance gives guidance on the factors that HSE inspectors need to take into account when considering when it is in the public interest to take a prosecution for section 7.

HSE inspectors will only be considering the public interest test if there is indeed sufficient evidence to prosecute.

It makes the following general point concerning the relative position of the company and the employee (see para 4, 6, and 7 of Appendix 1):

"Where the employer [i.e the company] appears primarily responsible for the circumstances causing you to consider enforcement then action would normally be taken against the employer only. ….

"In some cases you may need to consider if the company had done all it could and the offence resulted solely from the actions/inactions of an individual or whether, notwithstanding individuals’ actions, the company was culpable. You will be deciding whether action should be against the company or the individual.

It is also possible, but probably less likely, that you may want to prosecute both the company and an individual employee. This might be where there were deficiencies in the company's arrangements/procedures and additional, separate actions/inactions by an individual - both of which warrant prosecution. However, we do not generally prosecute individuals whose actions arose from their employer's unsatisfactory working arrangements and procedures."

In particular the Guidance at para 5 of Appendix 1, states:

It is not clear what weight these different factors should be given. The guidance states:

"In general we are most likely to prosecute employees where they have shown a reckless or flagrant disregard for health and safety, and such disregard has resulted in serious risk.

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Section 37
Section 37 states:

In effect it is necessary to show that:

•	a body corporate has committed an offence under a relevant statutory provision; and
•	there is a person who is a "director, manager, secretary or other similar office holder" within the terms of section 37;
•	and that person either - consented to the offence or - connived in the offence or - that the activities that constituted the offence was attributable to any neglect on the person’s part.

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What is a body Corporate?
A body corporate is a ‘company’. It need not be a private company and can include companies set up by statute.

Does a company have to be be convicted before a section 37 offence can suceed? No, that does not appear to be necessary. The HSE guidance (para 9 of appendix 4)states that:

"there does not have to be a conviction, or even proceedings, against the body corporate to proceed against a director/manager using Section 37, but we have to prove that the body corporate committed an offence as part of the Section 37 case."

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Who can commit the offence?
A "director, manager, secretary or other similar office holder" can commit the offence. It is clear who is a 'director' or 'company secretary' but who how widely defined is the word 'manager'? There has been a case that makes it clear that only certain managers can be prosecuted under section 37. The 1992 case of R v Boal states that 'managers' applies only to those individuals:

"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."

Para 10 of Appendix 4 of the HSE guidance states that

"Whether a manager or similar officer comes within scope will depend on their ‘status’ within the body corporate that committed the offence. You will need to consider their position in the management chain and their scope and authority of office in practice."

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What does consent and connivance mean?
The HSE guidance above states that 'consent' is where:

"the person was aware of what was going on and agreed to it"

and Connivance is where:

"the person was aware of what was going on"

In effect:
• consent is "awareness" and "agreement"
• connivance is simply ‘awareness".

Connivance is often said to be ‘turning a blind eye’.

There are a number of cases (click here to see them) that clarify the definition of these terms. These make it clear that:

It should be noted that there is an appendix to the HSE guidance which provides further information to HSE insepctors on these meanings but it is not publicly accessible.

It should be noted that it is not necessary that the director or manager be aware that the particular conduct in question constituted an offence. Only, as the HSE guidance states, that they knew "what was going on."

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What does ‘neglect’ mean?
‘Neglect’ on the part of a person can only exist in relation to a duty that the person was required to perform. There is no neglect unless there is some form of duty. Section 37 does not in itself impose any duty upon directors or managers to perform any particular duty; it only makes its an offence to fail to comply with some duty - imposed on that individual - in an 'unreasonable' manner.

The courts have stated that in relation to section 37, it is not necessary for this duty to be one imposed by law. It can be any other obligation or duty which may for example have been imposed by the company itself.

This is important since in relation to company directors it is not clear what is the extent if any, of their legal obligations. To read more about this click here.

Para 22 of Appendix 4 of the HSE guidance states that:

"To prove neglect, we have to prove that the accused has failed to take some steps to prevent the commission of an offence and that the taking of those steps either expressly falls, or should be held to fall within the scope of the functions of the office which he holds. A court would need to consider this in light of the whole circumstances of the case including the accused’s state of knowledge of the need for action, or the existence of a state of fact requiring action to be taken of which he ought to have been aware."

It goes onto state (para 23) that:

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Public interest factors
The HSE guidance states that in general:

"Action under section 37 should generally be targeted at those persons who could have taken steps to prevent the offence."

It also makes the following general points (para 2 of Appendix 2):

It states that the particular considerations should include whether:

There is often a situation that a company has gone into liquidation and the question arises whether or not in such cases the HSE should in particular consider the prosecution of directors and others.

The HSE guidance states that:

"Section 37 cases should not be taken against directors/managers just because a company has closed down. We need to look at the circumstances of the closure, whether a case against an individual manager is warranted in any case, and also if there is evidence that the closure may have been a deliberate attempt to avoid prosecution."

There is also the question of how the HSE should deal with small companies, where the company directors own the company themselves. The HSE guidance states that:

"In general we seek to avoid cases against both a company and sole directors, who are also the principal owners of the company, in circumstances where this would be regarded as prosecuting the same person twice. In this situation, you need to judge whether prosecution is more warranted against the individual or the company."

Legal Cases
• Huckerby V Elliott [1970] 1 All ER189 at p.194
• Bell v Alfred Franks & Bartlett Co. Ltd [1980] 1 All ER 356 at pp 360E-F and 362A.
• Armour v Skeet [1977] SLT 71.

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