With the introduction of 'Health and Safety Sentencing Guidelines' in 2016 and the recent UK prosecutions of charities for health and safety breaches, charities must be aware of the risks to avoid when trying to be 'health and safety compliant' to avoid significant fines or possible imprisonment.
Legal health and safety obligations
The Health and Safety at Work etc. Act 1974 (HSWA) imposes a number of obligations on organisations and "dutyholders" (who are usually employers or owners of an organisation or those in control of premises) and sets out the general duties owed to all employees (Section 2 HSWA) and non-employees, including members of the public, volunteers and visitors (Section 3 HSWA).
HSWA imposes the same duties on a charity as any other employer both towards employees (if they have them) and non-employees. It is not uncommon for charitable organisations to be operated entirely by unpaid volunteers, but that does not mean they should ignore health and safety. Relevant guidance suggests that it is good practice to give volunteers the same level of protection as employees, just in the same way a duty of care is owed to volunteers as well as employees under the civil law.
The Charity Commission refers to health and safety in its Safeguarding Guidance, which includes an obligation to take reasonable steps to protect people from harm.
Trustee responsibilities and liability
The role of a trustee of a charity is to ultimately direct and manage the charity as a whole. They are responsible for the operation of the charity and must show they understand their legal obligations. Due to the nature of their role, they are considered duty holders under the HSWA.
Trustees have a general duty to take reasonable care of themselves and others affected by their work (Section 7 HSWA) and where a health and safety offence is committed with the connivance of, or is attributable to any neglect on the part of, a trustee, a senior manager or an officer of a charitable company then that individual can be prosecuted personally under section 37 HSWA along with the a prosecution of the charity under section 2 or 3 of HSWA, personally liable alongside the charity itself.
There is therefore the risk of personal liability even where the charity is incorporated.
Where it is unincorporated then there is no separate legal entity against which an action can be brought and so an action would be brought against the individual trustees of the charity, though those trustees do have a right to be indemnified out of the assets of the charity save where they have acted beyond their powers or in breach of trust and cannot prove that in so doing they acted honestly and reasonably and ought fairly to be excused.
What about employees?
Section 7 HSWA specifically refers to the important duties that are placed on an employee to help protect themselves and other employees, as well as any other person who may be affected by the employee's actions or inactions. There is also an obligation for employees to co-operate with the charity in so far as necessary to assist with complying with the overarching duties under sections 2 and 3 HSWA.
Health and Safety Sentencing Guidelines – how do they impact charities?
The Health and Safety Sentencing Guidelines were introduced in February 2016 to provide some uniformity and guidance to judges when sentencing organisations and individuals who are convicted of health and safety offences. The guidelines effectively increased the (potentially unlimited) average fine to around £1 million for large organisations (as determined by the guidelines) where the level of culpability was high and the offence was considered to have posed a serious risk of harm to relevant persons.
If a charitable or publicly funded organisation is the defendant facing sentence, the annual revenue budget of the charity will be considered in assessing the level of fine and the fine should normally be substantially reduced if the offending organisation is able to demonstrate that the proposed fine would have a significant impact on the provision of its services.
The threat of imprisonment for trustees has also increased since the introduction of the guidelines. There are very few opportunities to avoid a custodial sentence, as the guidelines suggests a sentence of anything from 26 weeks to two years imprisonment, even for some low culpability cases.
Health and safety incidents and the Charity Commission
The Charity Commission requires charitable organisations to report 'serious incidents', being an adverse event, whether actual or alleged, which results in or risks significant:
- harm to the charity's beneficiaries, staff, volunteers or others who come into contact with the charity through its work;
- loss of the charity's money or assets;
- damage to the charity's property; or
- harm to the charity's work or reputation.
Health and safety incidents, whether actual or alleged, which engage items 1) and 4) above are therefore likely to trigger the need to make a serious incident report. Great care must be undertaken when drafting such a report, so as not to prejudice the charity's overall position from a regulatory context.
What charities should do if a problem arises
It is therefore important for trustees and senior managers of charities to understand the sentencing framework for health and safety offences (including levels of culpability and seriousness of harm risked) and receive early strategic advice in the event of an incident in order to limit the level of fine and/or imprisonment that could be imposed following a conviction.
As a trustee or senior manager of a charity it is important to make sure you do all that is reasonable in the circumstances to protect yourself and the charity from criminal liability by being compliant with health and safety regulations. This will in turn limit exposure to investigation and/or prosecution by any enforcing authority.
Consider the following:
- what have you done to ensure your organisation, at all levels including the board, receives competent health and safety advice? How are health and safety incidents and near misses dealt with?
- how are you ensuring all staff – including the board – are sufficiently trained and competent in their health and safety responsibilities?
- how confident are you that your workforce are consulted properly on health and safety matters and that their concerns are reaching the appropriate level including, as necessary, the board?
- what systems are in place to ensure the charity's risks are assessed, and that sensible control measures are established and maintained? Are your policies and practices up to date and relevant to the charities current activities?
We will deal with these and other issues in our mock interview event on Tuesday 5 March 2019, where we will put a trustee through their paces while being interviewed for health and safety breaches. Attendees will learn practical lessons to take away and share with their charity teams in order to secure compliance with health and safety obligations, now and in the future. Click here for further details.