IoD prepares new guidance on directors’ health and safety duties

A new guidance document on directors’ responsibilities for health and safety management – being jointly prepared by the Institute of Directors (IoD) and the Health and Safety Executive (HSE) – should not have the status of “relevant health and safety legislation or guidance” for the purposes of the forthcoming corporate manslaughter legislation, according to the HSE’s legal staff.

This view, given to the Health and Safety Commission (HSC) in May, lessens the legal significance of the draft guidance and follows the commission’s decision last year not to proceed with specific new legal duties on company directors through an amendment to s.37 of the Health and Safety at Work Act.

Nevertheless, any forthcoming guidance endorsed by the HSC will represent a significant upgrading of the pre-corporate manslaughter bill advice contained in guidance document IND(G)343.

In May 2006, the commission instructed the HSE to work with “key stakeholders” to produce the updated authoritative guidance. The IoD has taken the lead on consultation with its members, the main target group for the guidance.

A steering group of stakeholders – led by the IoD and including representatives from the NHS Confederation, the CBI, the Institution of Occupational Safety and Health and the TUC – produced draft guidance1 in May on which the public consultation ended in June. The intention has been to launch the final updated guidance in the autumn (followed by a version aimed specifically at smaller organisations), on the assumption that the Corporate Manslaughter and Corporate Homicide Bill would have been agreed and would be coming into force at the same time.

The HSC is due to consider the IoD’s final guidance in September before adding its endorsement.
Three essential principles underpin the draft guidance: there should be strong and active leadership from the top of an organisation, with visible, active commitment from the board; boards should involve workers in the promotion and achievement of safe and healthy conditions; and risks should be assessed and reviewed on a regular basis, using guidance from competent advisers where appropriate. Expanding on the essential principles, the guidance lays down four sets of core actions that it is essential boards and individual members take relating to their legal duties. Finally, good practice guidelines are included, illustrating how the core actions can be achieved.

Health and safety policy development should be a role for the board and its individual members, the guidance states. Policies should be “living documents”, evolving with, for example, the introduction of new working practices or machinery. Good practice in planning the direction of policy suggests that health and safety should appear regularly on the agenda of board meetings, and that an individual director be nominated as a health and safety champion.

“The presence on the board of a health and safety director can be a strong signal that the issue is being taken seriously and that its strategic importance is understood,” the draft states.

To deliver good health and safety performance, directors must ensure that health and safety arrangements are adequately resourced and that boards involve employees or their representatives in decisions. Good practice suggests that organisations set up a separate risk management or health and safety committee, reporting to the board and chaired by a senior executive. The health and safety arrangements of suppliers and contractors should also be evaluated, as “their performance could adversely affect yours”, the guidance points out.

Boards need to put in place a strong system of monitoring to ensure that formal reviews of health and safety information take place, and that unexpected events in the meantime are brought to the board’s attention.

Board-level managers should review health and safety performance at least once a year, and this process should include a report on any health and safety shortcomings, actions to address weaknesses and a review system to monitor progress against these actions, according to the draft guidance.
Despite the HSC’s caution about the legal significance of the new guidance, the IoD said it would be very disappointed if the manslaughter Bill was lost, since it has worked for nearly seven years to help develop the legislation.

1. Leading health and safety at work: actions and good practice for board members, Institute of Directors, May 2007,  www.iod.com.