Criminal Liability
Criminal Enforcement
The HSA has the power to prosecute breaches of the Health, Safety and Welfare at work legislation. Charges may issue after an investigation undertaken as a result of injury or death. Equally, they may arise after an investigation in the normal course of the inspection.
The vast majority of obligations under health and safety legislation can be the subject of prosecution if breached. Prosecutions can be by way of summary procedure in the District Court or by way of judge and jury trial “on indictment” in the Circuit Court.
Penalties and fines for breach of Health, Safely and Welfare legislation are entirely separate to any civil claim for compensation made by an employee who has suffered a workplace injury. The former is a criminal prosecution for enforcement and punishment. The latter is for the purpose of compensation.
Most offences may be prosecuted in the District Court, generally with a maximum prison term of up to 6 months and fine of €5,000 as they are likely to be minor offences. In a Circuit Court prosecution of a more serious breach, imprisonment can be up to 2 years and fine up to €3,000,000.
Personal Criminal Liability
Employers and certain others who are responsible for the workplace may be prosecuted for breach of health, safety and welfare legislation. Employees and other individuals in the workplace may also be prosecuted for breach of legislation.
An employer (corporate or personal) may not defend criminal proceedings by attributing the acts or default to a manager, an employee or another person. Directors and others (usually senior managers) whose acts or neglect have consented to or contributed to the offence on the part of the company / employer, may be prosecuted personally or the breaches of the legislation. Directors include persons who act as directors.
Where a director, manager or another person whose duties included making decisions, has authorised, consented to, contributed to the offence or where it has taken place with his connivance or neglect, that person, as well as the company / business, may be found guilty of the relevant offence. It is presumed until the contrary is shown, that the acts which caused the contravention were authorised consented to or attributable to the connivance or neglect of the person concerned.
There is a separate offence in the criminal law of reckless endangerment. This is committed where a person intentionally or recklessly engages in conduct which creates a substantial risk of death or harm to another. This offence can be committed in a health, safety and welfare at work context.
When a person is prosecuted, he may make a complaint to the effect that another person should be charged as the actual offender. If the court is satisfied that the person has used all due diligence to comply with the obligations, the latter person may be charged and convicted, instead of the former person who was first charged.
Fine Only Offences
A person commits an offence where he
- fails to discharge a duty to which he is subject in relation to consultations with and representations by the safety representative, safety committees and other representatives of employees
- prevents or attempts to prevent any person from answering any question to which an inspector may require an answer,
- fails to submit an improvement plan to an inspector within the time specified in a direction
- fails to implement an improvement plan the adequacy of which has been confirmed
- contravenes any requirement imposed by a notice requiring information
- prevents, obstructs, impedes or delays an officer of customs and excise in the exercise of any of the powers for inspection of articles and substances being imported by inspectors for the purpose of the legislation.
The above offences are subject to a fine of up to €5,000 in summary conviction. All the offences mentioned below carry the possibility of fine and imprisonment.
General Offences
A person commits an offence where he or she fails to discharge a general duty to which he or she is subject under the legislation. This includes those relating to
- the general duties of the employer
- information for employees;
- instruction, training and supervision of employees;
- emergencies and serious and imminent dangers;
- general duties of employers to persons other than their employees;
- general duties of employees
- general duties of persons in control of places of work
- interference, misuse of equipment
- general duties of designers, manufacturers, importers and suppliers of articles and substances;
- duties related to construction work;
- preventive and preventive measures
- hazard identification and risk assessment.
- safety statement
- the duty of employers to co-operate;
- health surveillance;
- medical fitness to work.
A person commits an offence where he contravenes any other of the “relevant” statutory provisions. This covers almost all health safety and welfare at work legislation and regulations made under the legislation.
Investigative Process Offences
A person commits an offence where he does any of the following
- prevents, obstructs, impedes or delays an inspector from exercising any functions conferred on him or her by the legislation;
- fails to comply with a bona fide request, instruction or directions from an inspector in the exercise of his or her statutory functions;
- where any person makes a statement to an inspector which he or she knows to be false or recklessly makes a statement which is false where the statement is made in purported compliance with a requirement to furnish any information imposed by or under any of safety health and welfare at work legislation, or for the purpose of obtaining the issue of a document under any of safety health and welfare at work legislation to himself or herself or another person;
- makes a false entry intentionally in any register, book, notice or other document required by or under any of safety health and welfare at work legislation to be kept, served or given or, with intent to deceive, makes use of any such entry which he or she knows to be false;
- produces or causes to be produced or allows to be produced to an inspector any record which is false or misleading in any respect knowing it to be so false or misleading;
- forges or uses a document issued or authorised to be issued under any of safety health and welfare at work legislation or required for any purpose under safety health and welfare at work legislation with the intent to deceive, or makes or has in his or her possession a document so closely resembling any such document as to be calculated to deceive,
- falsely represents himself or herself to be an inspector;
A person commits an offence if he—
- obstructs or impedes a member of the Garda Síochána in the exercise of a power conferred on him or her or by a warrant;
- refuses to produce any record that an inspector lawfully requires him or her to produce, or
- gives to an inspector information that the person knows is false or misleading.
Breach of Notices Offences
A person commits an offence where he does any of the following
- contravenes any requirement of an improvement notice, or
- carries on any activity in contravention of a prohibition notice.
It is an offence to contravene any order or orders made by the High Court as to the use of a place of work. It may also constitute contempt of court.
A person who, without reasonable cause, fails or refuses to comply with a requirement specified in an information notice or who in purported compliance with such a requirement furnishes information to the Authority that the person knows to be false or misleading in a material respect commits an offence.
A person who discloses confidential information in breach of the act commits an offence.
Another Person Liable
Where a person is charged with a summary offence under any safety health and welfare at work legislation, the person is entitled, upon information duly laid by him or her and on giving to the prosecution not less than 3 days’ notice in writing of his or her intention, to have any other person whom he or she charges as actual offender brought before the court at the time appointed for hearing the matter (whether or not the other person is his or her employee or agent).
If the commission of the offence is proved and the first person charged proves to the satisfaction of the court that he or she used all diligence to enforce safety health and welfare at work legislation and that the other person whom he or she charges as actual offender committed the offence without his or her consent, connivance or wilful default, that other person shall be summarily convicted of the offence, and the first person is not guilty of the offence, and the person convicted shall, in the discretion of the court, be also liable to pay any costs incidental to the proceedings.
The prosecution shall in any such case have the right to cross-examine the first person charged if he or she gives evidence and any witnesses called by him or her in support of his or her charge, and to adduce rebutting evidence.
Penalties
A person guilty of any of the above offences (other than those first mentioned as carrying a fine only) is liable—
- on summary conviction to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months or both, or
- on conviction on indictment to a fine not exceeding €3,000,000 or imprisonment for a term not exceeding 2 years or both.
This does not make an indictable offence in respect of regulations made under the European Communities Act unless otherwise provided by statute.
Where a person is convicted of an offence under safety health and welfare at work legislation in proceedings brought by the Authority, the court shall, unless it is satisfied that there are special and substantial reasons for not so doing, order the person to pay to the Authority the costs and expenses measured by the court, incurred by the Authority in relation to the investigation, detection and prosecution of the offence including costs and expenses incurred in the taking of samples, the carrying out of tests, examinations and analyses and in respect of the remuneration and other expenses of employees or consultants and advisers engaged by the Authority.
A person convicted of an offence under any of safety health and welfare at work legislation may, in addition to any fine that may be imposed, be ordered to take steps within a specified time to remedy the matters in respect of which the contravention occurred (and may on application extend the time so specified) and any person who fails to comply with any such order within the specified time (as extended) commits an offence. The time specified may be extended at the discretion of the court on application made by the person to whom the order is addressed.
Penalty Notice.
If an inspector has reasonable grounds for believing that a person is committing or has committed a prescribed offence under safety health and welfare at work legislation, he or she may serve the person with a notice in the prescribed form stating that the person is alleged to have committed the offence, and that a prosecution in respect of the alleged offence will not be instituted during the period specified in the notice and, if the payment specified in the notice is made during that period, no prosecution in respect of the alleged offence will be instituted.
A person on whom a notice is served may, during the period of 21 days beginning on the day of the notice, make to the Authority, at the address specified in the notice a payment not exceeding €1,000 as may be prescribed.
Where a notice is served the Authority, as specified in the notice, may receive the payment, issue a receipt for it and a prosecution in respect of the alleged offence shall not be instituted within the period specified in the notice, and if the payment so specified is made during that period, no prosecution in respect of the alleged offence shall be instituted. The Authority may retain the money so paid. Any payment so received shall not be recoverable under any circumstances by the person who made it
In a prosecution for an offence under the legislation, the onus of proving that a payment pursuant to a notice has been made shall lie on the accused.
Directors and Officers
Where an offence under any of safety health and welfare at work legislation has been committed by an undertaking and the doing of the act that constituted the offence has been authorised, or consented to by, or is attributable to connivance or neglect on the part of, a person, being a director, manager or other similar officer of the undertaking, or a person who purports to act in any such capacity, that person as well as the undertaking shall be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.
Where a person is proceeded against as aforesaid for such an offence and it is proved that, at the material time, he or she was a director of the undertaking concerned or a person employed by it whose duties included making decisions that, to a significant extent, could have affected the management of the undertaking, or a person who purported to act in any such capacity, it shall be presumed, until the contrary is proved, that the doing of safety health and welfare at work legislations by the undertaking which constituted the commission by it of the offence concerned under any of safety health and welfare at work legislation was authorised, consented to or attributable to connivance or neglect on the part of that person.
Where the affairs of a body corporate are managed by its members, the above provision applies in relation to acts and defaults of a member in connection with his or her functions of management as if he or she were a director of the body corporate.
Procedural Matters
In any proceedings for an offence under any of safety health and welfare at work legislation consisting of a failure to comply with a duty or requirement to do something so far as is practicable or so far as is reasonably practicable, or to use the best practicable means to do something, it shall be for the accused to prove (as the case may be) that it was not practicable or not reasonably practicable to do more than was in fact done to satisfy the duty or requirement, or that there were no better practicable means than was in fact used to satisfy the duty or requirement.
Nothing in safety health and welfare at work legislation shall operate so as to afford an employer a defence in any criminal proceedings for a contravention of those provisions by reason of any act or default of his or her employee, or a competent person appointed by the employer for the purpose of the performance of functions as are specified in relation to protection from and prevention of risks to safety, health and welfare at work.
Summary Offences
Summary proceedings in relation to an offence under any of safety health and welfare at work legislation may be brought and prosecuted by the Authority.Summary proceedings for an offence under any of safety health and welfare at work legislation may be instituted at any time within 12 months from the date on which the offence was committed.
Where an offence under any of safety health and welfare at work legislation is committed by reason of a failure to do something at or within a time fixed by or under any of those provisions, the offence shall be deemed to continue until that thing is done.
Where a special report on any matter is made, and it appears from the report that any of safety health and welfare at work legislation was contravened at a time which is material in relation to the subject matter of the report, summary proceedings against any person liable to be proceeded against in respect of the contravention may be instituted at any time within 6 months of the making of the report or 12 months after the date of the contravention, whichever is the later.
Any person (including the Authority) aggrieved by an order made by the District Court on determining a complaint under the legislation may appeal therefrom to a judge of the Circuit Court within whose circuit is situated the District Court in which the decision was given, and the decision of the judge of the Circuit Court on any such appeal shall be final and conclusive.
Evidence
If a person is found to be carrying on a work activity in any place of work at any time at which work is being carried on, he or she shall, until the contrary is proved, be deemed for the purposes of the legislation to have been employed in that place of work either by the person who has or who may reasonably be presumed to have overall control over the work activity concerned or by another employer carrying on work activities in that place of work.
Where any entry is required by any of safety health and welfare at work legislation to be made in any record, the entry made by an employer or on behalf of an employer shall, as against the employer, be admissible as evidence of the facts therein stated, and the fact that any entry so required with respect to the observance of any of safety health and welfare at work legislation has not been made, shall be admissible as evidence that the provision has not been observed.
In any proceedings under the legislation, a copy of a record may be given in evidence and shall be prima facie evidence of the facts stated in it if the court is satisfied as to the reliability of the system used to make the copy record and the original entry on which it was based.
Publication of Names
The Authority may from time to time compile a list of names and addresses and the description of business or other activity of every person—
- on whom a fine or other penalty was imposed by a court under any of safety health and welfare at work legislation,
- on whom a prohibition notice was served; or
- in respect of whom an interim or interlocutory court enforcement order was made
The Authority may at any time cause the above list to be published in such manner as it considers appropriate. The list shall specify in respect of each person named in the list such particulars, as the Authority thinks fit, of
- the matter occasioning any fine, penalty, notice or order, as the case may be, imposed on the person, and
- any fine, penalty, notice or order occasioned by the matter concerned.
References and Sources
Irish Books
Safety, Health and Welfare and at Work Law in Ireland 2nd Ed 2008 Byrne Ch 3
Safety & Health Acts Consolidated & Annotated 2013 Byrne
Health, Safety & Welfare Law in Ireland 2012 Kinsella
Health & Safety: Law and practice 2007 Shannon
Health & Safety at Work 1998 Stranks
Civil Liability for Industrial Accidents 1993 While
Websites
The Health and Safety Authority www.hsa.ie
Health and Safety Executive (UK) www.hse.gov.uk
UK Books
Tolleys Health and safety at work, 2017 29th ed Bamber,
Corporate liability: work related deaths and criminal prosecutions 3rd ed. Forlin
Health and safety at work: European and comparative perspective Ales.
Health and Safety Law 5th Ed 2005 Stranks
Principles of Health and Safety at Work (8th ed) Holt, Allan St. John; Allen, Jim;
The Law of Health and Safety at Work 2014/15 (23rd ed) Moore, Rachel; Winter, Hazel;
Statutes
Safety, Health and Welfare at Work Act 2005
Safety, Health and Welfare at Work (General Application) (Amendment) (No. 3) Regulations 2016 (S.I. No. 370 of 2016)
Safety, Health and Welfare at Work (General Application) (Amendment) (No. 2) Regulations 2016 (S.I. No. 70 of 2016)
Safety, Health and Welfare at Work (General Application) (Amendment) Regulations 2016 (S.I. No. 36 of 2016)
Safety, Health and Welfare at Work (General Application) (Amendment) Regulations 2012 (S.I. No. 445 of 2012)
Safety, Health and Welfare at Work (General Application) (Amendment) Regulations 2010 (S.I. No. 176 of 2010)
Safety, Health and Welfare at Work (General Application) (Amendment) Regulations 2007 (S.I. No. 732 of 2007)
Safety, Health and Welfare at Work (General Application) Regulations 2007 (S.I. No. 299 of 2007)