Liability for Directors and Management Under Health and Safety Laws

The Built Environment is one of the most inherently dangerous workplaces and recent events have demonstrated the importance of adhering to health and safety laws. Our Corporate team reviews the obligations on management in the sector to ensure a safe workplace and the scope of personal liability for health and safety breaches.

Recent prosecutions by the Health and Safety Authority (HSA) have highlighted the importance of taking measures to protect employees and others in the workplace. The Safety, Health and Welfare at Work Act 2005 (2005 Act) puts the responsibility for health and safety in the workplace on employers and those in charge of workplaces.

Although it is more common for corporate entities to be prosecuted, in certain circumstances, directors and management can be held personally liable for health and safety offences. In 2021, 25% of prosecutions for health and safety offences on indictment were taken against individuals. Against this background, it is increasingly important for directors and those in management positions operating in the built environment to ensure they understand the standards to which they will be held as regards health and safety .

In this article, we review the circumstances in which directors and management can be held personally liable for health and safety breaches and reference helpful guidance from the HSA.

Personal liability of directors and managers under the 2005 Act

The 2005 Act defines an ‘employer’ as not only the employer, ie the corporate entity employing the worker, but also a person under whose control and direction an employee works.

Section 80(1) of the 2005 Act extends liability for an offence committed by an undertaking to a person, that is a director, manager or other similar officer, who authorised or consented to the action or whose neglect or connivence constituted the health and safety offence. In such circumstances, the corporate entity and the relevant individual may each be prosecuted for the offence.

Individuals found guilty of an offence under the 2005 Act can be a fined up to a maximum of €5,000 or 6 months imprisonment in the case of an offence prosecuted summarily or up to a maximum of €3,000,000 or two years imprisonment for an offence prosecuted on indictment.

Examples of prosecutions on directors and managers

In 2021, a site foreman pleaded guilty to a charge under section 14(b) of the 2005 Act, which provides that a person shall not intentionally, recklessly or without reasonable cause place at risk the safety, health and welfare of persons in connection with work activities. He was personally fined €12,500 by the Dublin Circuit Criminal Court for failing to notify his own staff of the presence of asbestos at the site while carrying out works on a building in Dublin city centre. Two contractor companies were also found guilty of offences.

In another case, an individual was sentenced to 12 months imprisonment that was suspended for 12 months. It was found that the individual had failed to manage and conduct his undertaking in such a way that individuals at the place of work, who were not his employees, were not exposed to health and safety risks. The prosecution arose from a failure to take precautions in relation to a crane working near overhead power lines and to ensure that work was carried out safely and in accordance with ESB guidelines.

Onus of proof is on the accused

If an individual is being prosecuted for failure to comply with a duty or the offence consists of a failure to act or use best practical means to do something, Section 81 of the 2005 Act places the onus of proof on the accused to establish that it was not practicable, or not reasonably practicable, to do more than was in fact done to satisfy the duty or requirement, or that there was ‘no better practicable’ means than was in fact used to satisfy the duty or requirement. It will therefore be important for an individual to demonstrate and establish that he or she actively adhered to health and safety policies and complied with the duties and requirements under the 2005 Act.

HSA guidance

The HSA website includes guidance on the roles and responsibilities of directors and senior managers for workplace safety and health, which should be consulted by the relevant individuals appointed to discharge those roles and which should be implemented and adhered to in practice.

Conclusion

As certain types of activity in the Built Environment have the potential to pose serious health and safety risks, it is particularly important for directors and management in the sector to be aware of their duties and responsibilities. The potential for harm to staff, reputational damage and prosecution means it’s essential for directors and management to understand their role in ensuring a safe workplace, or otherwise risk corporate and personal liability.

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For more information and expert advice, contact a member of our Corporate team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.