What Every Director Needs To Know About Consent, Connivance, and Neglect…

In my article about ‘Reasonably Foreseeable’ I told you how two men cooked to death in an industrial oven in 1998. Based on the bakery environment, the events were reasonably foreseeable and the company was fined £373,000. (R v Freshas Bakery).

There is more to the story, however! The company was fined £373,000. But what about the directors? 

You see, both directors and companies are responsible for the acts and or omissions of their employees. Ultimately the buck stops with the directors, even if staff are doing things they shouldn’t be. When an accident happens, the directors are de facto in the firing line. In the eyes of the law (or in this case, the HSE), ignorance is no defence.

Under Section 37 a director can be prosecuted for consent, connivance, and neglect… 

Consent

Imagine for a moment that you’re a busy director. (Which for many readers may not be a big mental leap!). You’re at work one day, toiling under a looming deadline, when Harry knocks on your door.

“I know it’s not how we’re supposed to do things,” Harry begins, “but we’d get this order out today if we removed the safety guard.” He pauses for a moment to survey your response. “We know what we’re doing; the guard isn’t really needed,” he continues, “and Mr Big at ACME would have his order by 5PM…”

“Do whatever you need to,” you reply. Harry leaves.

—

This situation is an example of consent, where a director assents to a course of action known to be wrong, but where the upside seems to outweigh the perceived risk. 

Connivance

Imagine you’re in your office one day when your phone rings. A feeling of cold dread wells up when you see the number. It’s Mr Big at ACME… for the third time today. You gulp and pick up the receiver.

After he’s hung up, you walk out of your office and collar Jane as she walks past with an armful of folders.

“Look, Jane,” you begin. “I know you started at 6AM today, but we need to get the ACME order out. Could you stay a bit later this evening to finish it? We do have a bonus review coming up next month…” 

Jane looks at you with tired eyes. She can tell it isn’t really a question. She nods and walks away.

—

Connivance is when you force or incentivise somebody to do something you know shouldn't be done. Quite often, connivance relates to extra working hours (rather than ‘forcing’ somebody to work around a safety measure). Connivance can be either a threat or an incentive. Or quite often, both!

Connivance can often occur when a director says “I don’t care how you get it done, JUST GET IT DONE!” This wording implies the director has absolved themselves of responsibility and passed the decision of how to break the rules to the employee. But under Section 37, this isn’t the case.

Neglect

Okay, so imagine you’ve just got off the phone with the dreaded Mr Big at ACME. Mr Big wants to know WHERE HIS ORDER IS. You peep through the blinds of your office and see Jane bending the safety guard to one side while she operates the guillotine, cutting four sheets at a time.

“Great,” you think. “No need to mention anything!”

You might think that any guillotine-related accident that subsequently happens isn’t your fault. After all, you were very discrete. Nobody saw you peeking through the blinds. But as we’ve discussed, ignorance is no defence. As a director, you must make it your business to know what people are doing.

—

Neglect is where you know what people are doing but you turn a blind eye, in effect neglecting your responsibilities to your employees. 

Of the three, neglect is the most common. It’s easier to turn a blind eye than to ask someone to break the rules. But all three can easily happen when the pressure is on. In fact, without ongoing diligence, one of the three will happen sooner or later!

Can I give you an example?

Join me in my time capsule as we head back a few years. We’re standing in the storage area of a company that rents out access equipment.

To move the equipment around there’s an established safe system of work. But one day, instead of moving a large access platform from the side, a junior member of the warehouse team gives it a shove from the back. The platform topples over, landing on him and killing him instantly.

Was this consent, connivance, or neglect? The investigation showed that although there was a safe system of work in place, everyone knew that a shortcut was often taken as it was easier to give the equipment a shove. The correct supervision was not in place and it had become “custom and practice”. So in this case, it was neglect.

Fast-forward three years… 

An inquest has now taken place, but the case hasn't yet gone to court. The directors are extremely worried about being prosecuted under Section 37. The implications could be a fine, plus potentially a prison sentence. They could also be disqualified as directors for anywhere between 2 and 15 years.

So remember, if you’re a company director you’re always ‘37’! By that I mean it is your responsibility to ensure that employees are competent, well-trained, and understand the implications of working around safety procedures. 

Prevention is infinitely more desirable than cure! By the way, SafetyNow is 10 years old in June. To celebrate, I’m offering 10% off all 2024 course bookings made before 30th June. You can browse all our courses at www.safety-now.co.uk.

Moira

P.S. I publish these articles every two weeks. Join my free email list to make sure you never miss an update!