Next spring, the HSE Board will make a final evaluation of the effect of the current voluntary guidance and decide whether or not to recommend to ministers that the government introduces statutory health and safety duties for directors. The TUC, CWU and other Trade Unions have concluded that the voluntary approach has clearly failed and that individual duties in law are the only viable option. Not surprisingly employers organisations continue to oppose and argue against such duties, claiming the Health and Safety at Work legislative regime is adequate. 

The HSE board had given a commitment to do this once the current version of voluntary guidance had been available for 18 months and the  effects of the Corporate Manslaughter and Corporate Homicide Act 2007 and the Health and Safety (Offences) Act 2008 - were known.
 
Twenty years after the deaths of 187 people in the Zeebrugge Ferry disaster crystallised the debate on the issue when responsible directors and managers walked away scot-free, pressure on the HSE and the government is intensifying.  That disaster and many following high profile cases involving workers fatalities have proved that under current Law it is almost impossible to prosecute the directors of a large company for health and safety failures.
The current law means that if a board of directors refuses to have any involvement in health and safety, however bad the record of the company, there is almost nothing that can be done to force them to take responsibility beyond disqualification (which is almost never done).

Currently few prosecutions are taken and none succeed against directors and executives of large companies where criminal negligence has occurred. Several attempts in recent years have failed due to the way the law is written. 
Only prosecutions against the 'hands-on'  directors of small companies have succeeded where a death or injury has occurred, attributed to the actions or neglect of the director concerned.

The TUC and CWU believe that the case for duties has now become compelling, two years on from the launch of the jointly-badged Institute of Directors and Health and Safety Executive voluntary guidance, setting out what directors should be doing to plan, deliver and monitor health and safety arrangements in their organisations.

CWU National Health and Safety Officer Dave Joyce said:

"Company directors and Senior Managers have failed to respond to a series of pleas to voluntarily take health and safety seriously in the boardroom, so they should be required by law to do so. Health and Safety standards will not significantly improve until those in control of companies and organisations are held accountable for its actions and safety shortcomings. Legal sanctions makes it clear to employers and their workforces that a government expects certain things to happen and that the matter is too important to be left to goodwill, gentle encouragement and even self-interest. 

The charging and sentencing of directors would have a salutary effect and bring home within an organisation the consequences of safety failures. With nine in 10 injuries attributable to management failures, it makes sense that health and safety law is able not only to impose sanctions on the body corporate but also on those making the decisions. 

There's been voluntary guidance in place since 2001 and the current 2007 government backed voluntary guidance issued jointly by the Institute of Directors and Health and Safety Executive has had its chance and has failed! Its perverse that there are no explicit legal health and safety duties on those at the top of organisations even though there is an almost universal consensus that the key to effective management of workplace health and safety is leadership from the top.

The problem is that not enough directors take their health and safety responsibilities seriously and voluntary guidance is never going to work. That's why we are calling on the government to do as they promised in 2000 and introduce new legal duties on those who control organisations and ultimately decide the level of priority and resources that health and safety gets alongside productivity and profit making".

In 2000 the Government published its "Revitalising Health and Safety" strategy which amongst other things stated that it was the intention of Ministers, when parliamentary time allows, to introduce legislation on directors statutory health and safety responsibilities.

Almost ten years after the strategy was launched only two sets of voluntary guidance have been published and as Dave Joyce adds "We are still awaiting the promised legislation."

The government has introduced the Corporate Manslaughter and Corporate Homicide Act which became law last year but the Act only allows Companies and Organisations to be prosecuted and excludes individual directors even if it was they that made crucial decisions that led to or contributed to a fatality. Nothing has happened in respect of introducing legal duties on directors. In July 2009 both the independent 'Donaghy' report and the Parliamentary Work and Pensions Select Committee of MPs called for a legal duty on directors to be introduced as soon as possible.

On the question of Director disqualifications Dave Joyce said:

"The Courts do have the power to disqualify a director for health and safety failures under the Companies Directors Disqualification Act 1986, but that is very rarely done. There has only been 7 cases where this had been used for health and safety offences since 1986 whereas hundreds of directors are suspended every year for financial, competition and insolvency reasons. There are many cases where companies have been convicted for breaches of the Health and Safety at Work Act but where no application has been made for directors disqualifications under the Companies Directors Disqualification Act 1986 even in cases of repeat offenders. We are calling for that to change and want disqualifications to be considered in all serious cases and to be automatic where a Corporate Manslaughter conviction occurs."  

The CWU is also calling for government action on the question of fines for health and safety offences as the government's sentencing advisory council currently considers the matter. As an example of both fines set to low and directors not being held to account - Factory bosses of the ICL Stockline plastics factory which exploded in 2004 killing nine workers and injuring 40 were condemned by the Health and Safety Executive (HSE) and in a damning report by judge Lord Gill. Conditions in the factory were poor, safety rules were broken and corners were cut to save money, . The report identified numerous failings in equipment, risk management, staff management, working culture at the site, maintenance and inspection and general health and safety assessments. The company was fined £400,000 for health and safety breaches but the Bosses faced no criminal charges. In contrast British Airways was fined £121.5 million by the Office of Fair Trading after admitting it had colluded with Virgin Atlantic and other airlines to fix fuel surcharges on cargo and passenger flights.

Dave concluded:

"As with most health and safety legislation, good practice employers will have no worries. They will already have procedures in place that would protect them. It's those who never discuss and deal effectively with safety at board level who will be forced to consider the implications for them personally if there's an injury or death. Directors would no longer be able to hide behind the defence of they did not know or had no direct involvement."

Source: CWU