Section 37 – Health and Safety

Section 37 of the Health and Safety at Work Act – Potential for Prosecution of Company Directors

Section 37 creates a secondary liability where the primary liability is that of another person. Prosecutions can be made if the following has occurred:

• An offence has been committed under any of the relevant statutory provisions by a body corporate

• The offence has been committed with the consent or connivance of or has been attributable to any neglect on the part of the accused

• The person accused is a director, manager, secretary or other similar officer, or a person purporting to act in any such capacity, or a member of a body corporate whose affairs are managed by its members.

“Consent” and “connivance” imply both knowledge and a decision made on such knowledge.

If a person, by some act or omission causes another person to commit an offence, then they too are guilty of an offence, even if the other person was not prosecuted or could not be prosecuted. Where an offence is committed by a body corporate with the consent or connivance, or by the neglect, of a director, manager, secretary or a member acting in a managerial capacity, that individual too is guilty of an offence.

It is clear that the liability does not fix on any person because of the name that attaches to their role in the company, but because of the authority and responsibility that it holds.

Where there is a prosecution intended to proceed under Section 37, evidence should be obtained so that the position of the individual in the management structure can be demonstrated. Such evidence could be obtained from the safety policy or elsewhere to show that the individual was or ought to have been aware of the circumstances leading to the breach by the body corporate.

Those at the top of organizations/companies need to prepare for more involvement in health and safety investigations and the increasing potential that they may be individually prosecuted by the HSE.

It has been reported that the numbers of senior management being individually prosecuted has soared by more than 400% in the last 5 years.

Section 37 also contains a power to disqualify directors as a potential sentence as well as convicting and imprisoning for up to 2 years.

The people at the very top of the company need to be aware of the potential for individual fines and imprisonment if breaches are made to health and safety with their consent, connivance or neglect.

The most important thing that directors and senior managers can do is to ensure that health and safety is a priority at all levels and that any issues and risks are reported to the highest level and acted on swiftly.

It’s too late to act after the accident, put prevention measures in before and avoid being challenged on your legal, moral and contractual duties under the health and safety law.

According to the HSE, there is an evidential stage of the test as well as a Public Interest element.
To prosecute someone under section 37 you need to be able to prove that:

i. a body corporate has committed an offence under a relevant statutory provision; and
ii. a person is a “director, manager, secretary or other similar office holder” within the terms of section 37; and that either

• the person was aware of what was going on and agreed to it, (consent); or
• the person was aware of what was going on (connived); or
• what was going on was attributable to the neglect of the person, in relation to an obligation or duty on the part of the person.

There is also a public interest stage of the test
As well as being able to prove a case under section 37, you also need to decide whether a prosecution ought to be taken. Action under section 37 should generally be targeted at those persons who could have taken steps to prevent the offence. For a section 37 offence your considerations should include whether:

• the matter was, in practice, clearly within the director/manager’s effective control -were the steps that could reasonably have been taken to avoid the offence fall properly and reasonably within their duties, responsibilities and scope of functions?
• the director/manager had personal awareness of the circumstances surrounding, or leading to, the offence;
• the director/manager failed to take obvious steps to prevent the offence;
• the director/manager has had previous advice/warnings regarding matters relating to the offence. (This may also include whether previous advice to the company meant that he/she had the opportunity to take action. In such a case you would need to show that he/she knew, or ought reasonably to have known, about the advice/warning.)
• the director/manager was personally responsible for matters relating to the offence, e.g. had the individual manager personally instructed, sanctioned or positively encouraged activities that significantly contributed to or led to the offence.
• prosecution would be seen by others as fair, appropriate and warranted.
• the individual knowingly compromised safety for personal gain, or for commercial gain of the body corporate, without undue pressure from the body corporate to do so.