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Finch Consulting Director Briefings
- Sep 15, 2020
- Latest Journal
Director Briefings Part 1: Director’s Duties and The Management of Health and Safety at Work Regulations 1999
In the first of Finch Consulting’s new health and safety toolbox talk series for Directors, health and safety specialist solicitor Sue Dearden and former HSE Principal Inspector Melvin Sandell remind Directors of both their corporate and personal duties, and explain the key elements of the Management of Health and Safety at Work Regulations 1999.
Probably the most effective tool for improving and maintaining a safe workplace is a clear and obvious, active buy in from the Directors. The management chain naturally reflects the priorities and attitudes of the Directors and without their active support, a safe working attitude and culture will simply not happen. Find the time!
Management of Health and Safety at Work Regulations 1999 (MHSWR)
This is where the high-level requirements in the Health and Safety at Work etc Act 1974 are distilled down to clear, management duties. ‘Reasonable practicability’ takes a back seat and ‘must’ takes over meaning there are specific legal duties to:
• Ensure you have competent H&S support
• Identify H&S risks to staff and others who may be impacted by your business.
• Assess the hazards identified – in terms of how likely they are to cause harm and how serious that might be.
• Work out how the risks will be managed in line with the hierarchical principles of prevention:
• Eliminate risk where possible
• Reduce risk where it cannot be eliminated
• Manage remaining risk through training, instructions, protective equipment and working procedures
• Record the significant risk assessment(s) in writing (if employing 5 or more staff)
• Communicate the risks and control measures to employees
• Monitor the adequacy and efficacy of the measures in place (and provide health surveillance if appropriate)
• Review the risk assessments if circumstances change
This is all considered fundamental by the regulators in demonstrating that you are doing what you should, forms the basis of any interactions and informs enforcement decisions.
• Health and safety management can be delegated to external professionals or an internal manager but that doesn’t mean the duties go with it. Delegation is not derogation and like everything else, the more you engage with it, the more it will get done. Engage.
• Be mindful of the health and safety risks arising from the company’s local and wider business. Actively think about, engage with and challenge staff on whether risks could be eliminated or better managed. If Directors engage in health and safety, then so too will the command chain who work for them.
• Lead by example. Don’t ignore bad practices or dangerous situations and challenge unsafe behaviours. Turning a blind eye to issues means others will too and may end up with you in prison. Take responsibility.
• Make all Directors responsible for the H&S in a department or area and make reporting successes, innovations, or failures a standard item on the board agenda. Insist on regular updates from your competent health and safety advisor and actively seek input from employees at all levels – take note of the information you are given in this area – challenge and question if you have concerns and always respond. Again, if Directors are seen to be engaged, others will engage. Make time. Your failure to know about, consider and act upon information presented to you may also end up with a prison sentence.
The Companies Act 2006 doesn’t impose specific health and safety (H&S) obligations on Directors but H&S is an integral part of compliance with other duties under the Act including promoting the success of the company for the benefit of its members having regard (among other things) to:
the likely consequences of decisions in the long term;
the interests of the company’s employees and
the impact of the company’s operations on the community and environments.
The HSE and IOD jointly issued guidance on Director’s duties in relation to health and safety, setting out an agenda for effective leadership of health and safety and promoting the principles of:
• strong and active leadership from the top;
• worker involvement;
• assessment of risk;
• monitoring and reviewing performance.
If further reason is needed for Directors to lead from the top on health and safety issues, remember that if a Company breaches its health and safety duties and this breach was committed with “the consent or connivance of, or to have been attributable to any neglect on the part of any director…” then, as alluded to above, that Director could be guilty of an offence and punished accordingly (section 37 Health and Safety at Work etc Act 1974). The Director’s breach doesn’t need to be very serious to pass the custody threshold. Conviction can be punished by an unlimited fine and up to 2 years’ imprisonment.