Legal Article - Health & Safety

Allocation of Responsibilities

The employer has overall responsibility for ensuring satisfactory standards of health and safety at a place of work and effective Health & Safety management processes. In this context, the employer is defined as the corporate body (e.g. a Limited company), or a partnership, the Sole Proprietor or Owner of a business.

The Employer's Liability

The employer may incur liability for health and safety in one of two ways.

1. The employer is personally liable for accidents that result from the acts or omissions of the employer.

2. The employer is vicariously liable for accidents that result from the acts or omissions of his or her employees. This liability could extend under common law to the payment of compensation to injured employees.

Where any offence under section 2 of the Act (and any the relevant statutory provisions) is committed by a body corporate if it is proven 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 then he/she; as well as the body corporate, shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly. This personal liability is established under Section 37 of the Act. This particular section of the Act is strongly worded, referring to offences which are committed with the consent of, or are due to the neglect of an officer of the company such as a director, manager or secretary.

Clearly, a judgement made by an individual that is reasonable at the time, but is later proved to be incorrect; is not the same as a hurried, ill-judged decision made in order to save time.

Any persons who accept a position with delegated health and safety responsibilities (i.e. a manager with delegated Health & Safety functions) will be expected by their employer and by the enforcing inspector to make correct decisions. This assumes, of course, that they have been given sufficient training, that the training has been validated and that they have been given sufficient time and facilities to undertake their job properly.

The most likely circumstance where the question of a personal prosecution of a manager could arise is when an offence committed by his or her employer is attributable to the neglect of the same manager.

Personal responsibility on the part of managers will be questioned if an accident occurs or enforcement action is taken in circumstances where their acts or omissions may have contributed towards any accident. If this occurs; managers will need to demonstrate that they made decisions that were reasonable for a person with their authority and expertise. Managers will also need to demonstrate that they did all that they reasonably could to ensure that their instructions etc. were actioned.

In order to have the maximum impact on working conditions, thereby reducing accidents and the possibility of enforcement action, individual managers must ensure that their instructions etc. are well documented. Such actions will not only improve safety standards and achieve a higher standard of compliance with legislation, but will also reduce the possibility of a personal prosecution against the manager concerned.

Appointing an External Competent Person

Apart from appointing a member of staff as health and safety manager, many employers will also wish to appoint an external health and safety consultant to provide advice.

Any consultant engaged will be appointed under regulation 7 of the MHSWR. When an external consultant is appointed it is clear that the employer will wish to depend on the professional skill and expertise of that consultant. A prudent employer would ensure that the appointed consultant is competent and would check that the consultant has sufficient training, expertise, a proven track record and also adequate professional indemnity insurance.

Provided that adequate procedures for vetting and monitoring the work of consultants are in place, employers can realistically deflect liability on to an external expert should enforcement action be taken as a result of the consultant's neglect.

When an external health and safety consultant gives incorrect advice, the employer will be able to seek redress in a way that is appropriate to the circumstances in which the incorrect advice was given. However, if a person the role of the Health and Safety Manager (an employee) gives incorrect advice, then the responsibility will be shared between the employer and the appointed Health and Safety Manager.

Author: Ernie Taylor

Published: 19 Sep 2016

Edited: 19 Sep 2016


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