Personal liability for health and safety breach

This is an important question and the short answer is yes, individuals can be personally prosecuted for health and safety offences in England and Wales. This applies more broadly than many people realise.

Who can be prosecuted personally:

The Health and Safety at Work etc. Act 1974 creates personal criminal liability in several ways.

1. Directors, managers, and similar officers. Under section 37 of the 1974 Act, where an offence committed by a body corporate is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, any director, manager, secretary or other similar officer, that individual as well as the body corporate can be prosecuted and punished. This is one of the most commonly used routes for personal prosecution.

2. Employees. Section 7 places duties on every employee to take reasonable care for the health and safety of themselves and others who may be affected by their acts or omissions at work, and to cooperate with their employer on health and safety matters. Breach of section 7 is a criminal offence.

3. Any person. Section 3 imposes duties on employers towards non-employees, and section 36 allows prosecution of any person whose act or default caused another person to commit an offence. Section 33 sets out the general offence provisions.

4. Self-employed persons. Section 3(2) imposes duties on self-employed persons towards others who may be affected by their undertaking.

The threshold for personal liability:

For directors and senior managers under section 37, the prosecution must show consent, connivance, or neglect. This does not require the individual to have personally carried out the dangerous act. It is enough to show, for example, that the person knew about the risk and failed to act, turned a blind eye, or failed to put in place systems that a person in their position ought reasonably to have put in place. "Neglect" in this context means a failure to do something that the person ought to have done given their role and responsibilities.

Penalties:

Health and safety offences can be tried in the magistrates' court or the Crown Court. In the Crown Court, individuals convicted under section 37 or section 7 face unlimited fines and, for certain offences, imprisonment of up to two years. The Sentencing Council's health and safety guidelines apply to individuals as well as organisations, and courts are expected to consider the individual's culpability, the seriousness of harm or risk of harm, and their financial means.

Following the introduction of the Sentencing Council's definitive guideline for health and safety offences in 2016, there has been a noticeable trend towards higher fines for organisations, and the HSE and local authorities have continued to pursue individuals where appropriate.

Corporate manslaughter and gross negligence manslaughter:

It is worth noting a distinction. Under the Corporate Manslaughter and Corporate Homicide Act 2007, an individual cannot be convicted of corporate manslaughter. However, individuals can still be prosecuted for gross negligence manslaughter at common law where a death has occurred. This carries a maximum sentence of life imprisonment. So where a workplace death results from an individual's gross negligence, personal prosecution for manslaughter remains a real possibility and the HSE will refer cases to the police and CPS where appropriate.

Practical considerations:

If you are concerned about personal exposure, it is worth thinking about the following.

1. Your role and seniority. The more senior you are, the more likely you are to face scrutiny under section 37, but employees at any level can face prosecution under section 7.

2. What you knew or should have known. Documentary evidence such as emails, risk assessments, board minutes, and training records will be central to any investigation.

3. Whether you took reasonable steps. Demonstrating that you actively engaged with health and safety, challenged failures, sought advice, and escalated concerns can be a strong defence.

4. Insurance. Directors' and officers' liability insurance may cover legal defence costs in some cases, but it will not cover criminal fines or penalties.

5. Early legal advice. If you are aware of an HSE investigation or have been contacted by an inspector, it is sensible to take advice promptly, including on your rights during interviews under caution.

If you can tell me more about the specific situation you are dealing with, whether you are a director, an employee, or in some other role, and what the nature of the breach or concern is, I can give you more targeted guidance.