Health and Safety Law* places the overriding Duty for health and safety with the Employer or the Controller of a Premises. In the case of most companies, this Duty rests with the CEO or Managing Director and members of the Board who will be viewed, collectively or singularly and depending on circumstances, as the final decision maker(s) and Directing Mind(s).

Although it is not possible to delegate the criminal Duty for health and safety, it is possible to delegate management responsibility to a responsible and competent officer, in most companies this will be the Health and Safety Manager.  

The key to showing that a Board of Directors is being diligent to their Duty is by having genuine and obvious health and safety oversight coupled with the ability to intervene when there is a significant identified but unmanaged risk to health, safety or liability.

It is considered both wise and to be best practice for a Board of Directors to have within its number, a Board Member with responsibility for health and safety. This individual should work closely with the Health and Safety Manager and should have an understanding as to how health and safety is being managed from day to day. The Board Member should also be aware of any significant health and safety issues as they arise. When necessary, the Board Member may need to give direction to the Health and Safety Manager on matters that the Manager may feel is beyond his or her authority and to arbitrate when there is management conflict involving health and safety.

The Health and Safety Policy is seen as the foundation on which Duty Holders base their health and safety management systems. For the Policy to be effective it must be fully supported by the Company’s CEO/MD and Board of Directors. The Policy should be reviewed by the Board and ‘signed off’ at least annually or when there is a significant change.

Health and Safety should also be an agenda item at all Board meetings when, for example, the following should be presented and discussed:

• Accidents Statistics; focusing on those accidents and dangerous occurrences which show a trend, or which required a report to the enforcing authority or insurers. The Board should also consider those accidents which may pose an actual or potential liability risk for the Company

• Insurance Claims; a progress report of any ongoing personal injury claims (actual or potential)

• Progress Reports; focusing outstanding actions brought forward from the previous reports for example: audits, risk assessments or inspections etc. In addition, reports should highlight newly identified hazards and dangers which pose a significant risk to the Company, these may arise from new plans or projects which the Company is thinking of making as part of its ongoing business

• Information Concerning New Legislation or Standards; the Board should be made aware of these factors (the recent Grenfell Fire report being a case in point) and should give consideration as to how these may affect or apply to the Company, the Board should then give direction on how the Company should proceed in meeting any potential Duty or risk

• Sickness Rates and Occupational Health Effect; the Board should consider, taking care to maintain an individual’s confidentiality, reports of work-related ill health, the management and eventual return to work of those who may be absent for long periods of time and those who may require additional and significant intervention for reasons of Equality (for instance; requesting occupational health interventions or disability risk assessments)

Consultation with Employees; Companies have Duties to consult with their employees over matters of health and safety.  From a Board perspective, employees should have, under agreed procedures, the right to approach either the Health and Safety Manager, their safety representative (if the company recognises trade unions) or the responsible Board Member in good faith and without fear of reprisals, about issues concerning workplace Health and Safety. Any significant matter brought to the Company’s attention should be addressed at the time and should be raised within the health and safety agenda at the Board meeting.

It would also be prudent for the responsible Director to attend Safety Committee Meetings, where these exist.

Board members cannot ‘turn a blind eye’ to safety concerns affecting their undertaking. In the very worst of circumstances involving a fatality at work and when it can be shown that a board member knew or ought to have known about an unsafe circumstance and failed to act. That board member or members may well be investigated for manslaughter.

Duty Holders can appoint external Health and Safety Consultants to assist with the management of health and safety but should always keep in mind that the overriding Duty for health and safety rests with the Duty Holder.

*

In the UK:

• Health and Safety at Work etc. Act 1974
• Regulatory Reform (Fire Safety) Order 2005
• Corporate Manslaughter and Corporate Homicide Act 2007

In Ireland:

• The Safety Health and Welfare at Work Act 2005
• The Safety, Health and Welfare at Work (General Application)Regulations 2007