In October last year, solicitor Lee Hughes asked the regulator a number of questions regarding prosecutions of individual directors over the last 12 years. The figures reported back to Mr Hughes show that 43 directors and/or senior managers and company secretaries were prosecuted under s37 of the HSWA in 2010/11* – the highest since 1999/2000. The total also represents a significant increase on the 12-year-period’s low of 10 prosecutions under s37 in 2005/06, and follows the period’s previous high of 36 – recorded in both 2008/09 and 2009/10.
The total number of individuals convicted under s37 in 2010/11 was 35 – a substantial increase on the five convictions secured in 2005/06.*
Interestingly, of the senior managers and directors prosecuted in 2010/11, seven faced charges as a result of an investigation that followed a fatal incident; 15 were prosecuted for offences that resulted from an investigation where there had not been a fatal incident; and 21 resulted from an investigation where no incident of any nature had occurred.
Following conviction, three directors were disqualified for periods of between four and five years under the Company Directors Disqualification Act 1986. Data in relation to this matter were not available prior to 2008/09, a year in which three directors were also disqualified. None was disqualified in 2009/10.
Disqualification is not confined to s37 breaches; other reasons could include breaches of sections 3(2), 7, 8 and 36 of the 1974 Act, as well as contravention of Improvement or Prohibition Notices. Nevertheless, a general lack of awareness among HSE operations directors and their local-authority counterparts of the 1986 Act provisions was highlighted in an influential research report prepared for the HSE in 2007 by academics at the University of Warwick.
The research, which looked at the period between the 1986 Act coming into force and 2005, concluded that just 10 directors had been disqualified for health and safety reasons over this timespan – a figure dwarfed by the 1500, or so, directors disqualified for insolvency, or other financial reasons over the same period.
In September last year, the Lib Dems put forward a policy paper at their party conference, advocating that the power to disqualify an individual from being a company director should be extended to serious failure to protect employees’ well-being.
Moreover, despite calls for the Institute of Directors/HSE code of practice on directors’ duties to be made statutory, it remains voluntary.
* The HSE cautions that this data has not been validated and may not be completely accurate.
Source: SHP 04 January 2012