Wednesday, 11 January 2012

Directors' Update December 2011

Directors’ Update December 2011

Specific Directors’ Duties

The subject of directors’ duties has been a hardy perennial ever since the Labour Government included it in their manifesto in May 1997.  In April 2011 the HSE returned once again to the issue of health and safety duties in law for directors.  Whilst it did not rule out a return to review this decision, it yet again supported the maintenance of the status quo.  Specific health and safety duties for directors has long been an ambition of the unions which was only half met by the introduction of the Corporate Manslaughter Act in 2007 because it applies to corporations and not individuals.  If a Labour government egged on by the unions could not muster the political will to enshrine directors’ duties into criminal law, it is very unlikely that a Conservative government committed to reducing the regulatory burden is going to find parliamentary time for it.  In all probability therefore the issue can safely be parked for the next four or five years unless there is a high profile case which prompts another review.

Any director who has been paying attention to these updates however, will know that there is little reason for directors to relax their guard.  Part of the HSE’s reasoning is that it already has a powerful instrument in the form of section 37 of the Health and Safety at Work Act (HSWA) under which directors can be prosecuted for consent, neglect or connivance which lead to a breach of duties, and it has shown increasing willingness to use it.  Add to this the fact that under the Health and Safety Offences Act 2009 (also covered in previous updates) a Crown Court can imprison an individual for up to two years or impose an unlimited fine for a prosecution brought under section 37, and you can see why the HSE believes that it already has sufficient legal powers where directors are concerned.  The conviction of Richard James at Lewis Crown Court in May 2011 is case in point.  Mr James was a director of a property maintenance company.  In 2009 a 21-year-old roofer fell 8.5m through a skylight of a building managed by the company and died.  Although Mr James was acquitted of manslaughter he was convicted under section 37 and received a six month sentence suspended for two years and ordered to complete 150 hours of community service.  He may not serve time in jail but he now has a criminal record.  Such a fall from height is not unimaginable at an event or an exhibition.

New Relevant Case Law

There has also been relevant case law which further empowers courts with regard to section 37.  The caveat was always that there had to be active ‘connivance’ which implied that the director had to know about the failing in order to be in breach of the law.  A recent ruling1 rejected that premise so that it is possible to prosecute a director for a health and safely failing which they did not know about but ought to have done.  In this case it was failing to ensure that safety systems were in place.  Ignorance of the breach of duty by the company, in other words, is no longer a defence.  There has been a further appeal in a separate case resulting in a binding interpretation of current law2.  In this case two directors were prosecuted and fined for offences under the Private Security Industry Act because the company supplied unlicensed security guards.  The mechanism is the same as section 37 of HSWA which permits prosecution of directors for offences committed by the company.  This case was appealed because the directors were employed after the contract started and so they were not part of the original decision and the instigation of the breach of duty.  The case is salutary because it introduces the precedent that new directors are not immune to offences committed before they were appointed if they fail to act once they join the company.  The lesson is clear.  Directors, including those that have recently been appointed, need to be satisfied that the company they are joining is legally compliant with relevant health and safety law or they risk prosecution.

Corporate Manslaughter Case

Previous updates have extensively covered the Corporate Manslaughter and Corporate Homicide Act.  The first conviction of Geotechnical Holdings and a key director was not ultimately a good indicator of how this law would be applied in practice not least because the director concerned was never prosecuted because he was too ill to stand trial.  In the most recent case, Lion Steel Equipment is being prosecuted for the death of a worker who fell from height.  Three of its directors are being prosecuted for manslaughter by gross negligence3 and also face charges under section 37 of HSWA.  Here we have directors being held collectively and individually to account for failings which led to a death at work.  We will follow this case in a future updates.


Whereas the law regarding directors’ duties has not significantly changed, recent application of the law indicates an increasing willingness by the courts to hold individual directors to account and, where warranted, impose custodial sentences.  Directors and newly appointed directors must recognise that cabinet style collective responsibility exists at board level and positively engage in the scrutiny of the company’s operations to ensure that health and safety duties are discharged in compliance with the law.

Simon Garrett

This and other updates and comment can be viewed on our blog at


1.     Regina v P Ltd and Another

2.     R v Huthins and Charalambous 2011

3.     Involuntary manslaughter by gross negligence requires a breach of duty which causes death

The essential elements are:

(2) breach of the duty causing death; and

(3) gross negligence which jury considers justifies criminal conviction,

(4) that gross negligence was a substantial cause of the death.

Monday, 9 January 2012

Health and Safety Update

General Update December 2011

The Purple Guide HSG 195

The Purple Guide has been in the process of revision over the last few years by HSE working through the Events Industry Forum (EIF)1.  This year the proposed draft was put out to consultation.  Our view was that it was a flawed document which, whilst it claimed to be widely applicable in the events industry, was in reality written by and for the outdoor entertainments events industry.  One only has to look at the membership of the EIF to see why.  We commented on all of the sections and encouraged our clients to comment on sections which would affect them.  Most event industry operations and safety professionals appear to have agreed with us and the draft document has now been officially withdrawn by the HSE.  The fundamental mistake was the failure by the EIF to recognise that other parts of the events industry have already developed guidance, not least the eGuide, which was not referenced in the draft.  The HSE will now create an ‘event safety micro site’ on HSE's website for the events industry in general, and handover responsibility for redrafting the revised Purple Guide to the EIF.  An important development is recognition by the HSE and the EIF of the existence of the eGuide and an undertaking to take account of it in the new revised Purple Guide.  Chris Skeith and the AEV will monitor its development as will we at X-Venture.

Health and Safety Enforcement and the Löfstedt Review

The concession regarding the Purple Guide may turn out to be a pyrrhic victory if we do not keep an eye on the bigger picture regarding how health and safety is regulated and enforced in the events industry.  The 2012 Olympics have awakened an interest by the HSE in the events industry generally, notwithstanding their involvement in the Purple Guide.  Previous updates have covered the potential for problems with parts of Construction Design Management Regulations (CDM) which is enforced by the HSE being applicable to events and exhibitions.  There has also been increasing interest by the HSE in temporary and demountable structures.

The recently published Löfstedt Review2 included the observation that splitting enforcement between the HSE for high risk industries, and the local authorities for other businesses and undertakings has led to an inconsistent approach.  The review recommends the following on page 87 of the report:

I recommend that legislation is changed to give HSE the authority to direct all local authority health and safety inspection and enforcement activity, in order to ensure that it is consistent and targeted towards the most risky workplaces.

The review lists those activities which are enforced by the local authorities and those which are enforced by the HSE. Whilst the idea of better regulation which was a key aim of the review is to be welcomed, it is a concern that the report does not cite event and exhibitions as falling under local authority jurisdiction which indicates that our interests have not been considered.  We should be concerned because events and exhibitions would easily fall within the ‘most risky workplaces’ being targeted.

There is no indication of an HSE campaign to tighten the regulatory screws on the events and exhibitions industry per se; however an holistic view of recent developments does give cause for concern.  The sight of an approaching local authority enforcement officer at an event was never necessarily welcome, but it should always be remembered that these are local officers who usually understand the events they are visiting and have a working relationship with the venue or event management team.  Contrast this with a visit from an HSE inspector who would not differentiate between a construction site and an event build up and it is easy to see how this could cause problems.

We will be commenting on the Löfstedt Review as a whole in a separate update.

Second Case of Corporate Manslaughter – Lion Steel

Lion Steel Equipment is being prosecuted for the death of a worker who fell from height.  Three of its directors are being prosecuted for manslaughter by gross negligence and also face charges under section 37 of the Health and Safety at Work Act.  We will follow this case in a future update.


From September 2011 only fatalities and major injuries can be reported by phone to the HSE.  All other reports must be on line at  The Lord Young report last year contained a specific recommendation to extend the reporting of minor injuries colloquially known as the ‘three day RIDDOR’ from three days to seven days. This will bring the law in line with the requirement to

provide a ‘fit note’ for absence from work from a GP after seven days off sick.


We are often contacted for advice with regards to changes in the law but as this update ably demonstrates, it is not so much the law itself but how it is applied and enforced that should be of concern. 

Simon Garrett

This and other updates and comment can be viewed on our blog at


1.     The Events Industry Forum is an informal body which meets twice a year to provide a gathering where events industry trade associations and similar bodies can meet to discuss issues of common interest.

2.     In March 2011, the Government established an Independent Review of Health and Safety legislation to make proposals for simplifying the existing raft of health and safety legislation. The review considered the opportunities for reducing the burden of health and safety legislation on UK businesses while maintaining the progress made in improving health and safety outcomes. This review was chaired by leading risk management specialist Professor Ragnar Löfstedt.  The Professor and advisory panel asked all interested parties to provide evidence to help inform the scope for reducing the burden of health and safety regulation on UK businesses whilst maintaining health and safety outcomes.  The report "Reclaiming health and safety for all: An independent review of health and safety regulation" was published on 28 November 2011.

Wednesday, 4 January 2012

To Tweet or not to Tweet - @SimonGarrettXV

To Tweet or not to Tweet - @SimonGarrettXV

At X-Venture we are not given to intemperate outbursts or blurting out the first thing that comes to mind so it may seem odd that we are tweeting.  My first tweet was the breaking news that we had gone back to work after Christmas.  Just one more of the billions of tit bits of inconsequential e-chatter that now whirl around us.  The whole point of a consultancy like X-Venture is that we are paid to deliver carefully considered opinions.  Why then are we venturing (no pun intended) into the world of tweets?

We are paid to keep our clients up to date with the latest developments in health, safety and risk management.  Whilst most of what we deal in can hardly be described as breaking news, it does at least require us to be ‘in the know’.  I have observed over the last year the increasing role that Twitter has to play in dealing with incidents.  On one occasion at a music event, reports of crowd problems with moshing and a wall of death were being tweeted to fans outside the venue as they happened.  The result was that the venue due to host the event the following nights received these reports before the traditional NAA report which was due to follow the next day.  In one night a well-established safety tool that had been used by the NAA for years was reduced to a redundant afterthought.  One can easily see that in dealing with any incident the facts of the incident, or worse misleading facts, can be tweeted far and wide before any of the traditional reporting systems can catch up.

Some organisers and promoters recognise this and employ consultants and train staff to fight fire with fire by using Twitter to inform key stakeholders of the facts before they can be misrepresented.  My road to Damascus conversion came one night sitting in a bar in Barcelona after auditing an exhibition for one of the major organisers, and having a beer with their ‘Social Media Agitator’.  Leaving aside that he was a very engaging evangelist for the art of using social media to one’s advantage rather than falling victim to it, he also marshalled some very powerful and convincing arguments.  Not least of these was the need for companies to own the social media space in just the same way that for years I have been arguing the need for them to own the business of health, safety and risk management.  It seems we were singing from the same hymn sheet.

So how are we going to use it?  After all we can deliver considered opinions by blogs like this fairly instantly.  We can post opinions and facts or our Facebook page (yes we have one of those as well now).  In any case you cannot say much in 140 characters.  I am told by my social media advisor aka my brother-in-law that Twitter can be used as a ‘teaser’ for weighty think pieces on the blog or the Facebook page.  A canapé, if you like, an amuse bouche before the main meal to come.  So we will use Twitter to let you know if there is anything we consider worth reading on this blog site or on our Facebook page.  It may take a little while to get up and running but to ‘own it’ we need to use it.

When all is said and done if Twitter is good enough for Kate and Wills to announce their engagement then it is time for X-Venture to get with the social media zeitgeist and sign up to Twitter!