Accidents can result in prosecution of senior management

Individual members of senior management - and not only the corporate body - can be personally prosecuted and found guilty where it can be shown that an accident or ill-health resulted from any neglect by a director, manager or secretary.

For instance, a director of roads for a British regional council was personally prosecuted and found guilty following the death of an employee who fell while repainting a bridge in 1977.

The council had issued a circular to its departmental directors in 1975, requiring them, among other things, to prepare departmental safety documents.

The director who was prosecuted and convicted had not prepared a written policy for his department.

Failure to comply with any requirement of the Irish Safety, Health and Welfare at Work Act, 1989 or with the 1993 regulations can lead to the personal prosecution of a member of senior management by the Health and Safety Authority (HSA).

Cases are normally heard in the District Court but, in serious cases, a prosecution can be brought by way of an indictment in the Circuit Criminal Court or the High Court - where fines of the order of £500,000 could be imposed on a manager upon conviction.

Mr James Gleeson, general manager of NIFAST, says that his company offers senior management legal briefings to advise directors and senior managers about their personal and corporate responsibilities under Irish health and safety legislation.

The briefing examines compensation claims; an overview of the 1989 Act; the duties imposed on management by the Act and its regulations; how to manage safety and health; safety consultation; and the HSA and enforcement.

The format invariably involves a barrister and a senior consultant in health and safety meeting with the senior management within an organisation for about three hours. "It takes place at the client's premises and we can do it at whatever time suits the client," says Mr Gleeson.

The briefing is led by a barrister, usually Mr Raymond Byrne, who has written books on health and safety at work, such as A Guide to Safety, Health and Welfare at Work Regulations - regarded as a main text book for students of health and safety.

"The potential implications associated with health and safety legislation are very severe for both the corporate body and the individual and particularly people in senior management capacity. We've seen situations in Britain where prosecutions have been taken against senior managers personally and there have been cases of one or two managers who have gone to jail because of failure to implement safety and health," says Mr Gleeson.

Apart from the legal aspect, there's an incentive for management to be proactive about health and safety because of the rising costs associated with accidents and insurance, he says.

"What you're doing at the senior management legal briefing is you're taking it a stage further. You're telling them what the position is vis-a-vis civil cases and criminal cases."

While civil action will virtually always be against the company, criminal action arising from negligence can be against the company or an individual manager.

Civil cases tend to revolve around whether or not the organisation took "reasonably practicable" measures to protect employees and others from workplace accidents or ill-health. In civil cases, the biggest problem organisations face is what is meant in the legislation by "reasonably practicable".

"Most of the work we do as consultants would be working with organisations guiding them as to what is meant by `reasonably practicable' in a number of different situations."

They assess whether or not the arrangements and controls in place in a company comply with current regulations, standards and codes of practice, given the specific workplace hazards of the organisation.

The handout material is a standard abbreviation of Mr Byrne's book. But the presenters tailor their examples to a particular industry, situation or circumstance. Documentation on civil or criminal cases involving a specific industry are often brought along and passed around as supplementary information.

The genius of the legislation and regulations is prevention. "And that's really what the briefing is trying to do. It's trying to prevent accidents and that's the philosophy that comes across."

For further details about the senior management legal briefing, contact Ms Bridin Byrne, NIFAST, 46 Airways Industrial Estate, Santry, Dublin 17. Telephone: 01 842 4333.