This section outlines the various legal entities that, in addition to an individual person, may be prosecuted for health and safety offences. It also highlights the main legal principles and procedures that affect different legal entities.
An accused in a health and safety prosecution is commonly not an individual person. There are a range of other legal entities that may be prosecuted including:
- limited liability partnerships;
- companies (incorporated bodies, usually with limited liability);
- individuals using business names;
- unincorporated associations;
- School governors deleted for Scotland;
- Public bodies other than the Crown eg Local Authorities
It is important to determine the legal status of a proposed accused. A company or other body corporate may be prosecuted in its own right as it has a distinct legal personality. To include the wrong accused on the complaint will invalidate the document and such an error is normally incapable of being corrected by amendment. A new complaint will be needed though at such a late stage serving a new complaint may not be possible.
There are powers under sections 7, 8, 36 and 37 HSWA to proceed against, among others, employees and directors in addition to, or instead of, the employer.
The HSC Enforcement Policy Statement requires that HSE should identify and prosecute or recommend prosecution of individuals, where warranted. In deciding whether it is warranted you should, in particular, consider the management chain and the role played by individual directors and managers. Prosecution action should be taken where the inspection or investigation reveals that the offence was committed with their consent or connivance or was attributable to neglect on their part. Where an individual has been convicted of an indictable offence in connection with the management of a company, the court has the power to make a disqualification order under the Company Directors Disqualification Act 1986. More information can be found on this in Prosecuting Individuals, in particular Appendix 6.
For most health and safety offences, but not all, the duty holder will, and must, be an employer. During the investigation it is vital to ensure that the correct duty holder is identified. For such cases employment must be proved (see Status of workers and Section 53 Health and Safety at Work Act 1974). It is not uncommon for companies to operate under different names, for example one company may be the employer of persons in a factory but a different company may trade the output of the factory. Employees may not even know for certain who their employer is. All these aspects must be explored during any investigation. Evidence may need to be obtained from contracts of employment, pay slips, or by interviewing senior managers or directors (see Companies and compelled statements taken from directors for interviewing directors).