Following a workplace incident, authorities investigating possible breaches of health and safety law will request company health and safety policies and pre-existing job descriptions, with a view to establishing, amongst other things, which employees held specific duties and responsibilities with respect to health and safety.
In our experience, when investigating a workplace incident and any potential shortcomings that may have contributed to it, the police, Health and Safety Executive and other regulators often put job descriptions and any health and safety duties these may include, to individuals during interviews under caution.
Where health and safety policies and job descriptions are drafted in a way that seeks to raise an employee’s importance with respect to health and safety, that employee might find themselves exposed to individual criminal liability in circumstances where they could not realistically have fulfilled the duty or duties placed upon them in documents.
Companies should therefore ensure that documents which seek to allocate health and safety duties are drafted cautiously and fairly, and in language that is not unfairly onerous. In particular, where key health and safety duties are placed on directors and managers, these provisions should be drafted in a way that is realistic and achievable, and that does not place too much responsibility on one single person.
Rather than policies that place unrealistic and unduly onerous health and safety responsibilities onto one senior manager - for example one that includes a specific duty to ensure the workplace is safe - an appropriate alternative may be a provision that requires the senior manager to establish a system for monitoring the workplace with respect to health and safety.
Similarly, policies that place responsibility on a senior manager/manager to ensure the competency of all sub-contractors are likely to be unrealistic and unachievable. A more appropriate approach would be to require the senior manager to establish a system within the company for hiring subcontractors that are competent and adequately briefed.
Finally, company documents which seek to allocate duties with respect to health and safety law should be regularly reviewed and updated in consultation with the individuals occupying the relevant roles. It may be that a sensible time to review these documents is as part of an employee’s appraisal, so that they may be refreshed on their duties and offer insight as to whether what is recorded is an accurate and fair description of what their duties are in practice.