In light of the importance of workplace health and safety it is imperative that people are aware of the liability they assume by attending at a place of work.
The Safety, Health and Welfare at Work Act 2005 (“the Act”) expanded the scope of the health and safety duties imposed upon both employers and employees, as well as increasing the reach of personal liability for directors and managers for health and safety offences. The framework of the Act clearly anticipated greater scope for personal liability and this has been reflected in the prosecutions brought by the Health and Safety Authority since the coming into force of the Act.
There are a number of ways in which you can be found to be personally liable for a health and safety offence such a (1) where you are a sole trader or partnership, you will be responsible for discharging all the duties of the employer in your personal capacity; (2) where you assume a duty in your personal capacity which can capture both the employer company and an individual working within that company; and (3) where you, as an employee or director or manager or another person engage in acts in connection with work activities.
In relation to point three above it is important to note the following:
- Employees – The Act significantly expanded the duties imposed upon employees so that all employees comply with all relevant statutory requirements and take reasonable care to ensure their own safety, and that of others who may be affected by their acts or omissions at work. The scope of this duty will be largely determined by the role and responsibilities in the particular job.
- Managers and Directors – Prior to the enactment of the Act potential exposure already existed for managers and directors but the scope has now been expanded. A manager or director can be held liable for an offence if he/she consented to or is otherwise responsible for the neglect leading to the offence. A statutory presumption was introduced by the Act such that a manager or director whose duties include making decisions that could affect the management of the company to a significant extent, will be presumed to be responsible for the acts of the company unless the contrary is proved.
- Duties imposed on persons in connection with work activities – The Act also ensures that individuals, who are neither an employee nor a manager or director, can also have an obligation to health and safety duties. There is a duty on all persons not to intentionally, recklessly or without reasonable cause, interfere with anything provided for securing health and safety at work.
The implications of being convicted of a health and safety offence can include a criminal record, imprisonment, inability to work in a specific role, and an application being made for a director to be disqualification to act in that role. The Act is far reaching and imposes a responsibility for health and safety on each person at every level in an organisation.