Directors and Managers: Prosecution Risk for Health and Safety Breaches

In June 2022, Greenfeeds Ltd was fined £2m for the corporate manslaughter of two employees who drowned in a tanker containing semi-liquid pig feed. At the same time, a senior manager of Greenfeeds was imprisoned for 13 years after she was convicted of gross negligence manslaughter and a health and safety offence, the managing director was sentenced to 20 months’ imprisonment, and a transport manager to 12 months’ imprisonment suspended for two years, both for health and safety offences.

The Greenfeeds case is perhaps the starkest reminder in recent years of the enforcement risks faced by directors and managers following serious safety failings; however, there have been many other cases and there will be more to come. Senior individuals should understand the prosecution risk when managing safety in the workplace and not only in the wake of a serious incident.

Principal risks

The biggest enforcement risk for an individual is prosecution for gross negligence manslaughter where the maximum sentence is life imprisonment and an unlimited fine. Manslaughter, however, has a high threshold and requires a fatal accident. The more common risk for directors and managers arises under section 37(1) of the Health and Safety at Work Act 1974. 

Section 37 provides that, where a company commits a health and safety offence, directors and managers may also be prosecuted if the offence was committed with their consent or connivance, or was attributable to their neglect. The offence carries a maximum penalty of two years’ imprisonment and an unlimited fine. A conviction under section 37 (or for gross negligence manslaughter) could also trigger disqualification as a company director. 

Section 37 offence

What does consent, connivance or attributable to neglect mean?

Consent

Requires proof of (i) the individual’s knowledge of the facts that amount to the company’s breach and (ii) the individual’s agreement to that conduct. Agreement can be inferred from proof of knowledge, and the jury can infer knowledge from the surrounding circumstances. 

In short, knowledge of the failings gives rise to a prosecution risk.

Connivance

Requires proof of (i) the individual’s failure to take steps to prevent or discourage the company’s breach (ii) in circumstances when they were on notice of the facts that amount to the company’s breach, or should have been on notice and their lack of awareness amounted to wilful blindness. 

Again, knowledge of the failings, or wilful blindness, gives rise to a prosecution risk.

Neglect

Requires proof of (i) a duty on the individual, (ii) an act or failure to act by the individual that amounts to a neglect of that duty, and (iii) some causal connection between that neglect and the offence by the company.

In short, it must be established that there was a duty upon the individual to do a specific act and a failure to do so, and that the company’s failure was in some way attributable to the individual’s neglect. The role and responsibilities of the individual are therefore crucial. 

HSE guidance on leadership includes: ‘Effective health and safety performance comes from the top; members of the board have both collective and individual responsibility for health and safety.’ [1] The collective responsibility of the board, however, does not equate to a personal duty on each and every board member. 

An individual board director is entitled to delegate some functions, including in relation to health and safety, and is not under a general duty to acquaint themselves with all the details of the running of the company. 

Gross negligence manslaughter

An individual is guilty of gross negligence manslaughter if (i) he or she owed a duty of care to the deceased, (ii) breached that duty by a negligent act or omission, (iii) the negligence was a cause of death, and (iv) the negligence was gross. 

A gross breach requires ‘something which was truly exceptionally bad which showed such an indifference to an obviously serious risk of death of the deceased and such a departure from the standard to be expected as to amount to a criminal act and omission and so to be the very serious crime of manslaughter’. 

In the Greenfeeds case, it was found that the senior manager had shown a ‘blatant disregard for a high risk of death’. For years, workers had been entering a confined space with dangerous levels of carbon dioxide with no suitable risk assessment or method statement. The senior manager had ignored prior complaints and requests for breathing equipment. 

In April 2025, the sole director of a micro paddleboard tour company was imprisoned for ten and a half years for gross negligence manslaughter and a health and safety offence following the deaths of four paddleboarders whom she led over a weir during highly dangerous flood conditions – without having conducted any proper risk assessment and without giving any instructions or warning beforehand. 

In other cases, however, less stark failures have been sufficient for an individual to be prosecuted for gross negligence manslaughter (not always successfully).

Interviews under caution

If the police suspect an individual of gross negligence manslaughter they will conduct an interview under the Police and Criminal Evidence Act 1984. ‘PACE’ provides the rules under which suspect interviews take place including what suspects are entitled to know about the grounds of suspicion (‘pre-interview disclosure’), the use of the police caution (‘you do not have to say anything but…’), the right to legal representation, and the recording of interviews.

HSE guidance provides that if inspectors propose to prosecute an individual for a health and safety offence they should always be invited to attend an interview under PACE when questions about their involvement in the suspected offence can be put to them. [2]

Prosecution risk

Generally, a director or manager would only be at risk of prosecution if directly involved (and at fault) in a serious incident, or if they had failed to act upon obvious safety risks which subsequently resulted in a serious incident. The more serious the incident, however, the more likely investigators are to explore routes to prosecution.

In relation to section 37, HSE guidance states: ‘We would not expect to prosecute directors/managers in all cases where it may be possible to prove consent, connivance or neglect. Each case is considered on its own facts and circumstances.’ Further: ‘Action under section 37 should generally be targeted at those persons who could have taken steps to prevent the offence.’ [3] 

The guidance provides that considerations should include whether:

• the matter was, in practice, clearly within the director/manager's effective control – did the steps that could reasonably have been taken to avoid the offence fall properly and reasonably within their duties, responsibilities and scope of functions?
• the director/manager had personal awareness of the circumstances surrounding, or leading to, the offence?
• the director/manager failed to take obvious steps to prevent the offence?
• the director/manager has had previous advice/warnings regarding matters relating to the offence? (This may also include whether previous advice to the company meant that he/she had the opportunity to take action. In such a case you would need to show that he/she knew, or ought reasonably to have known, about the advice/warning).
• the director/manager was personally responsible for matters relating to the offence, eg had the individual manager personally instructed, sanctioned or positively encouraged activities that significantly contributed to or led to the offence?
• prosecution would be seen by others as fair, appropriate and warranted?
• the individual knowingly compromised safety for personal gain, or for commercial gain of the body corporate, without undue pressure from the body corporate to do so?

Legal advice

An individual facing investigation for gross negligence manslaughter or health and safety offences after a fatal or serious accident requires specialist legal representation. This requires careful fact-finding: engaging with investigators and the company, securing and analysing disclosure, identifying technical and legal issues.

Strategic decisions must be taken on whether to answer questions in interview under caution, provide a prepared statement, or exercise the right to silence; whether and when to make further statements; whether independent expert evidence should be obtained during the investigative stage; and whether detailed representations should be made to prosecutors against charge on factual, legal, or public interest grounds. 

Early decisions frequently determine whether an individual is charged at all, and if so on what basis. 

[1] https://www.hse.gov.uk/leadership/whyleadership.htm