A company registered with the Registrar of Companies, has a legal personality distinct from its members or owners. Therefore the company itself can commit an offence and it is the company that must in general be prosecuted for it. Each company is a separate legal entity and, like a person, a company can die in which case they cannot be prosecuted except in rare circumstances. Legal advice should be sought in such cases.
A company need not have any employees. (NB in which case carefully consider the legal entity to be prosecuted, if not an employer they must be self-employed or person in control of premises etc, see above).
The name of a public limited company must end with the words "public limited company" or the abbreviation "plc".1 A public limited company is one whose shares are traded, as opposed to the simple limited company whose shares cannot be traded. The name of a limited company must end with the word "limited" or the abbreviation "ltd." Usually the company letterhead will indicate its status (this information should be included as part of the company name on client records), however do not rely on letterheads.
A public limited company may own subsidiaries that are simple limited companies. In all cases, proceedings must be taken against the company that is in breach itself - there is no option to proceed against the parent company unless it is possible to use Section 36 ie where it can be shown that the breach was through the act or default of the parent company. In such cases it will be necessary for an extensive investigation of the way in which the companies have been run using board minutes etc.
Directors, managers, employees and others may be liable as individuals under HSWA 1974, sections 7, 8, 36 and 37 in addition to the company's liability.
Business or trading names
Information will be available in the letterhead, but it may be unclear or misleading. In the case of a group of companies, it may not always be clear which company is using the trading name.
Many individuals and many companies use trading names (delete end sentence for Scotland). A person carrying on a business in a name other than his/her own must include his/her true name in business correspondence and documents, and also specify an address where documents can be served. There is also a requirement to display this information in a prominent position at every place of business.
Similar provisions apply:
- to partnerships where the name of each partner must be stated if the name of the partnership does not consist of the surnames of the partners; and
- to registered companies which operate under a name other than the full corporate name of the company.2
When enforcement action is taken against a registered company, the company must be correctly described in the charge. Failure to do so can invalidate any enforcement action.
A company is obliged to state its full name, its registration number, and its registered address on all its business letters and order forms,3 and its name should appear outside every place where its business is carried on 4 and on all its other correspondence and trading documents.5
Do not rely on letterheads or order forms, in all cases you should make a search of the Companies Register,6 which will tell you:
- the company's correct name;
- its company number;
- the address of its registered office, which is the address that should be used on the draft complaint;7
- whether the company is in the process of being wound up.
You (or the Litigation Officer where available in HSE) should double check whether a compulsory winding-up order has been made, by telephoning the general enquiry line of the Insolvency Service (020 7291 6895) quoting the company number.
Change of name or structure
Where a company has changed its name, this does not affect any legal proceedings commenced against it. The company number will remain the same. Any legal proceedings that might have been continued or commenced against it under its former name may be continued or commenced against it under its new name.8 This applies also when a company registered as limited is re-registered as unlimited,9 and when a company registered as unlimited is re-registered as limited.10 The company's former names will be listed on its record at Companies House. While a company may change its name, it cannot change its company number. Thus the company number is the only accurate way of ensuring that the correct legal entity is being reported to the PF. It should be emphasised that changing the company name does not alter the corporate identity: that remains the same and is only properly identified, through the company's history, by the company's unique company number.
Where company names have changed frequently or in short succession, it may be convenient to refer to previous names. For example, the complaint could refer to "X Company Ltd., previously known as Y Company Ltd. and Z Company Ltd." This is a situation where the use of the company number would avoid any potential pitfalls arising from incorrectly describing the company in a complaint.
When a public body, such as a health board or local authority has its functions transferred (usually by statutory instrument) criminal liability for the actions of the former body does not generally pass to the new body. A criminal prosecution will not be possible against the new body unless specific provision for continuing liability is made in the statutory instrument.
- Companies Act 1985 ss25 & 27. Back to reference of footnote 1
- BNA 1985, ss.1(1) and 4(1). Back to reference of footnote 2
- Companies Act 1985 s351. Back to reference of footnote 3
- Companies Act 1985 s348. Back to reference of footnote 4
- Companies Act 1985 s349. Back to reference of footnote 5
- This can be done for all UK companies via Internet at The [Companies House Website SE6] and enquiries can be made by telephone on 0870 3333636 or by E-mail through the website. The website and E-mail enquiry facility are both accessible on HSE Director Scotland via Useful Links, Contact Information, Companies House. Back to reference of footnote 6
- Companies Act 1985 1985, s287(1), as substituted by Companies Act 1985 1989, s136. Back to reference of footnote 7
- Companies Act 1985 1985, s28(7). Back to reference of footnote 8
- Under Companies Act 1985 1985, ss49-50. Back to reference of footnote 9
- Under Companies Act 1985 1985, ss51-52. Back to reference of footnote 10