Recent case law in the field of health and safety law show that failings by directors and senior management of companies are increasingly leading to the criminal prosecution of not only their companies but also them personally as individuals.
Directors, senior managers and similar officers of undertakings can be prosecuted personally under section 80 of the Safety, Health & Welfare at Work Act 2005 if they are found to have managed safety and health inadequately. The 2005 Act places responsibility for safety and health at work on those individuals in charge of the workplace. Therefore, if directors who authorise and direct work activities turn a blind eye to unsafe work practices, they and the companies they run could find themselves with criminal convictions. Moreover, there is an onerous obligation on such directors to prove their innocence and demonstrate to a court that they carried out all that could be reasonably expected of them under the 2005 Act.
The penalties for directors and other officers for breaches of section 80 are severe – a criminal conviction and a fine of up to €3 million per charge and/or 2 years imprisonment. Fines cannot usually be indemnified by insurance and therefore must be paid by the company and/or director. Directors convicted in the Circuit Criminal Court also face an automatic disqualification from holding a directorship for 5 years. Adverse publicity and consequent damage to reputation are other consequences of a health and safety prosecution.
In recent times, there has been an increase in the number of times that the Irish Courts have prosecuted directors and senior managers personally under section 80 of the 2005 Act. For example, in 2009 a director of Owencrest Properties Limited was prosecuted by Roscommon Circuit Court for failures to ensure an employee had a safe place of work and to identify hazards contrary to the legislation (fall from a work platform resulting in death) and the director was fined personally €50,000.
In HSA –v- Clare County Council and Michael Scully (Ennis Circuit Court, 17 February 2010) a senior executive engineer was given a 12 month suspended prison sentence for failure to identify work place hazards and assess risks (resulting in a fatal injury to a dump truck driver). Clare County Council was also fined a total of €50,000. The key finding in the case was that both Clare County Council and its senior engineer could have prevented a foreseeable fatality.
This upward trend in successful prosecutions against company directors under section 80 continued in the case of DPP –v- Derry White Skip Hire Limited and Mr. Derry White (Limerick Circuit Court, 7 February 2012). Mr. Derry White, company director, was fined personally a sum of €5,000 with the company fined €15,000 for failures to ensure the health and safety of employees and the design and maintenance of safety equipment arising from an accident at the company’s waste recycling facility.
In summary, it is vital for directors and senior management of companies to have a robust and proactive attitude to managing safety and health at work. Health and safety issues cannot simply be dealt with as they arise. They need to be fully aware of the standard they must meet in order to avoid or defend a prosecution under s.80. In the current climate, it has arguably never been more important for directors and senior management not only to comply with the law but also to protect themselves and their organisation from criminal prosecution. If you require any further information on health and safety matters, please contact Robert Bourke, Partner, Litigation Department.
Emerging trend of directors and other officers of companies being held criminally responsible for health and safety failures.
Personal liability of directors is not dependant on a criminal prosecution of the company.
Once a prima facie case is established, the burden of proof is on directors to prove their innocence with potential significant penalties on conviction.
Legal advice should be sought to ensure directors and senior managers are fully aware of their responsibilities for workplace safety and health.