In April last year, the Sentencing Council published an impact assessment complete with new guidelines for health and safety offences in England and Wales. The assessment reported that in the years following on from 2011, there has been a steady increase in the number of individual prosecutions — with a sharp rise from 2017 onwards. In fact, after 2017 more than 25 per cent of those convicted landed an immediate or suspended jail sentence.
And although the report itself does not identify how many managerial positions were convicted, it has largely been suspected that the focus has moved away from employees on the frontline.
One notable example is a case that concluded in 2018, following the death of an employee as a waste processing company in Bootle, Merseyside.
Here the deceased, Zbigniew Galka, was able to enter into a machine that crushed paper and cardboard to remove a blockage without isolating it first. The subsequent investigation by the Health and Safety Executive discovered that an interlock mechanism should have prevented the machine from switching on — but it had been disarmed during maintenance two months prior. The mechanism was disarmed to circumvent a malfunctioning switchboard to keep production running, and although the message was passed on to management, Galka had not been warned.
Safety failings are convicting more senior managers than ever before
This accident occurred in 2010. At the trial, which concluded only two years ago, the company and the maintenance engineer both pleaded guilty to health and safety offences. A £700,000 fine was levied on the company and the engineer was sentenced to four months in prison.
But the Health and Safety Executive also prosecuted the company’s managing director and transport and operations manager. The MD, Jonathan Gaskell, was sentenced to eight months in prison. While OM, Paul Jukes, was given a nine-month sentence after initially pleading not guilty.
The HSE has said in its enforcement policy statement that during investigations it will consider the role played by individual directors and managers and also the general managerial arrangements in place — and will seek to prosecute when it seems justifiable. The sentencing guidelines make it pointedly clear that HSE is looking more closely to failures in risk management, and how this can lead to offences.
Going forward: What this means for health and safety policy at work
It is important to remember that health and safety prosecutions are not about negligent behaviour, but failings that are deemed under the law to be criminal. Most health and safety failures — unlike the case described above — happen when a lot of things go wrong, which together culminate into a singular bad event. They tend to happen due to lots of oversights, and not due to direct managerial instruction.
It can be tempting for HSE investigators to point to the senior managers whenever there is a serious health and safety issue in the place of work, even if the precautions are in place. This, not surprisingly, can be discouraging and may be perceived by management as an unfair.
So, while every care should be taken to make sure the proper precautions are in place, managers and directors should also take steps to protect themselves in the event of an accident or misfortune.
If you are working at a senior level in a company and under investigation, it is important that you explain exactly what your role is, and what your responsibilities entail; and that you can demonstrate knowledge of how safety is managed within the company. You can expand on this latter point by explaining each of the relevant safety systems in place, how competency is achieved, along with the processes for reviewing and checking up on both.
It is also important to get independent legal advice — and to keep in mind that such investigations may take years before a final decision to prosecute and convict.
The jury is still out on whether taking more steps to personally target and prosecute managing directors and other senior staff members will actually make a difference in the world of health and safety. But for now, it seems the HSE really is cracking down on top bosses for major workplace failings.
Now more than ever, it is time to make sure that your companies safety management systems are up to the standards, along with your staff competencies, and that you understand health and safety policy.
Thomas Owens is a researcher, and copywriter for RJ Lifts, a company that specialises in lift safety, maintenance, inspections and installations.