Q: I am considering becoming a sleeping partner in a small building firm owned by a relative who is looking to expand and needs financial input. The proposal on the table is that I would become a non-executive director.
Due to the very nature of the construction industry and the fact that health and safety is not an area with which I am particularly familiar, one of my concerns is whether as a director I could be held personally liable if there was an accident causing injury or death to a site worker. Could I be prosecuted under the Corporate Manslaughter and Homicide Act 2007?
A: The Corporate Manslaughter and Homicide Act 2007 imposes liability on the company as a separate legal entity and was not designed to impose liability on individuals in senior roles within the company.
However, Health and Safety legislation deals with the offence of gross negligence manslaughter, which does apply to individuals. As a result, Health & Safety legislation is considered to be a greater deterrent when individual directors are targeted rather than the organisation itself. Therefore the role played by individual directors where there’s a death in the workplace is likely to be actively considered by regulators and prosecutors and H&S legislation and the common law will continue to be used to establish individual criminal liability.
Penalties for companies under the Corporate Manslaughter and Homicide Act can be severe (in some cases sufficient to send the company into liquidation) and penalties for individuals under health and safety legislation can include prison terms.
As a director it is vital that you take your H&S obligations seriously and strictly observe compliance to minimise your risks. An experienced lawyer in this field will be able to guide you in this regard.