The new HSA guidelines aim to help directors and senior managers to protect employees and others whose health and safety may be affected by workplace activities, such as customers and members of the general public. Directors and managers are required to:

• understand their legal responsibilities and their role in governing health and safety,
  
  
• have a clear understanding of the key health and safety issues for their business,
  
  
• keep themselves continually informed of the risks that are likely to arise in the workplace,
  
  
• integrate health and safety into the main corporate governance policies of their business,
  
  
• set health and safety objectives and targets,
  
  
• ensure that health and safety risks are managed and controlled adequately, and
  
  
• receive the necessary health and safety training so as to fully acquaint themselves with their responsibilities.

The guidance issued by the HSA must be viewed in the context of the legal duty imposed on employers to manage and conduct workplace activities in such a way as to ensure the safety, health and welfare of employees and to ensure that non-employees are not exposed to risks. It is important to note that where a business or undertaking is prosecuted and convicted of breaches of health and safety legislation, directors and managers may also be prosecuted under section 80 of the Safety, Health and Welfare at Work Act 2005.

Section 80 of the Safety Health and Welfare at Work Act 2005, provides that where an offence has been committed and the acts that constituted the offence were authorised, consented to or are attributable to the connivance or neglect of a person being a director, manager or similar officer of an undertaking, that person shall, as well as the undertaking, be guilty of an offence and liable to prosecution. A person who is prosecuted under section 80 could be fined up to €3 million and / or sent to prison for up to two years.

Section 80 has been highlighted by the HSA on numerous occasions and its chief executive is on record as warning that it is not a question of if, but when, a section 80 prosecution will take place. So how can a director or manager comply with their legal obligations and be deemed by the HSA not to have failed in their duties?

It would seem that a board of directors which simply rubber-stamps management decisions could be held accountable, as could a board that does not assign sufficient resources to health and safety or fails to provide competent staff. In addition, a failure to provide adequate resources or to communicate on important health and safety issues would also, it seems, be deemed to constitute failure. On the other hand, providing leadership, setting appropriate standards, overseeing controls, giving managers responsibility and support are all regarded by the HSA as positive contributions to creating a safety culture within the workplace. The HSA suggests that businesses or undertakings appoint a 'safety and health director' to monitor the performance of health and safety issues. It is important to note, however, that such an appointment does not relieve other board members or senior managers of their health and safety responsibilities.

Since it seems clear that the HSA is not reluctant to bring a section 80 prosecution, employers should ensure that they are familiar with - and actively seek to comply with - their legal duties and obligations concerning health and safety in the workplace, including the very specific regulations in relation to workplace environments recently introduced by the 2007 General Application Regulations.

For further information please contact Jennifer Clarke.

Spring 2008.