What protects a director when HSE starts asking questions

Somewhere in the first weeks of a serious HSE investigation, a request for documents arrives that has nothing to do with the accident itself. Board minutes covering the last twelve months. The health and safety policy, together with the date anyone last reviewed it. An organisation chart. Job descriptions. Training records, with signatures and dates. Next to witness statements and photographs of the scene, it looks like background paperwork, and it is aimed at a different question entirely. The company's failings are established at the site. Yours are in the file.

This article is the second half of a subject we opened in July. That piece covered what personal responsibility under section 37 actually means for a director when something goes wrong: consent, connivance and neglect, the reversed burden of proof, and why appointing a competent safety manager moves none of the legal duty off the board. This one is about evidence. Because when HSE starts asking questions, the difference between a director who was exercising oversight and a director who assumed someone else was cannot be settled by what either of them remembers. It has to be shown, and showing needs records.

An investigator reconstructs your year backwards

HSE publishes operational guidance telling its inspectors what to gather when they are weighing whether a director should be prosecuted alongside the company. Board minutes come first, because minutes are the legal record of what the board decided and, just as usefully, of what it never discussed. Then job descriptions, contracts of employment, organisation charts and the safety policy, all checked against one test: are these working documents that describe how the business actually runs, or theoretical ones written for a shelf?

The guidance also points inspectors at your own people. Statements are taken from managers and staff about what you controlled in practice, what you asked about, what instructions you gave, and what you left alone. So the picture of your oversight is not assembled from your account of it. It is assembled from your paperwork and your employees, cross-checked against each other, working backwards through the year before the incident.

You can't decline any of this. Inspectors hold statutory powers under section 20 of the Health and Safety at Work Act to require documents to be produced and questions to be answered. And investigations routinely run for months before anyone is asked to explain themselves. Which is the quiet problem with relying on memory. By the time the questions come, your recollection of a Tuesday in March has faded, and the file has not.

What the reconstruction is really mapping is your role. Which decisions rested with you, and what authority you held over money, people, equipment and priorities. Whether the responsibilities the safety policy assigns to you match anything you demonstrably did. And whether, anywhere in twelve months of records, there is a trace of you asking a question about the risks in your business that could kill or maim somebody.

The distance between delegated and demonstrated

A director who receives a monthly report saying there are no issues and signs it off without a question feels covered. Under section 37, neglect does not require knowledge. It covers what you should have discovered but didn't. Which means twelve months of unchallenged reassurance reads very differently in an investigation file than it felt in the boardroom. There, it felt like a system working. In the file, it looks like a reporting line that generated comfort rather than information, with a director content to receive it.

Picture the MD of a sixty-person manufacturer, eighteen months after handing safety to a capable operations manager. He has a policy with his signature on it, a consultant's audit from last spring, a folder of monthly reports he approved, and an insurance schedule renewed on time. But ask when he last walked the shop floor with safety in mind, or what the audit's third recommendation actually said, and the answers are thin. Everything he holds shows the system existed. Almost none of it shows him overseeing it, and section 37 targets him personally rather than the system.

The patterns investigators notice are unglamorous. Safety appears on the board agenda for the first time at the meeting after the incident. Or the training records were signed in batches the week before an audit, while the risk register went untouched through two years in which the business doubled its headcount and moved premises. Retrospective tidiness has a texture, and people who read these files for a living recognise it quickly.

And the reconstruction does not stop at your own payroll. If outside firms work on your sites, the same questions get asked about them, because the liability for a contractor's incident often stays with the business that engaged them. A director can be diligent about employees and entirely exposed on the contractor side without ever noticing the gap.

What the interview under caution actually tests

Before submitting a prosecution report, HSE guidance says the suspected individual should be invited to an interview under caution, conducted under PACE. The format rewards records and punishes memory. Questions arrive with documents attached. Here are the minutes of the March meeting; you are recorded as present. The audit raised machine guarding at item six, so what happened to it? A director with a genuine oversight trail answers from the record. A director without one is assembling recollections under caution, often more than a year after the events, while everything he cannot evidence drifts towards neglect.

The personal stakes are worth stating plainly. Conviction under section 37 carries an unlimited fine and up to two years' imprisonment. HSE also tells its prosecutors to remind the court, in every such case, of its power to disqualify a director. Disqualification can run to fifteen years. And well short of prosecution, the scrutiny itself now bills at £188 an hour under Fee for Intervention, for however long HSE needs to deal with a material breach it has identified. There is no version of this process that is cheap, and the expensive versions are decided largely by what the file contains.

The handful of records that close the gap

The encouraging part, and it deserves the emphasis, is that the evidence protecting a director is small and specific. Three records carry the bulk of it, kept as a habit.

The first is a board minute that records scrutiny rather than attendance. Health and safety as a standing item, with a line showing what was asked, what was decided, who owns the action and when it returns. One minuted question in your own words is worth more than pages of appended policy. Because minutes are the document HSE reaches for first, and the one it treats as the legal record of what the board actually did.

The second is a dated trail showing where you walked and checked. HSE's guidance on health and safety for directors, built around Plan, Do, Check, Act, expects boards to confirm that what they believe is happening is happening. So a site walk noted with a date, one thing found and one thing put right, carries real evidential weight. It is the hardest record to fake after the event. Habit beats polish here. A diary entry outweighs a laminated inspection regime nobody follows.

The third is proof that monitoring reached you and something changed because it did. Findings tracked to closure, dated. And the refusals too, which surprises people: where you decided not to fund a control, a contemporaneous note of the reasoning is far stronger ground than silence, because it shows a director weighing risk rather than ignoring it. Whether your current arrangements would produce these three records for the last twelve months is a question you can answer today. If the answer is no, an independent review of where your oversight would stand up and where it would not closes the gap faster than waiting to find out during an investigation.

Frequently asked questions

Can HSE prosecute a director personally as well as the company?

Yes. Section 37 of the Health and Safety at Work Act 1974 allows prosecution of a director, manager, secretary or other similar officer where the company's offence happened with their consent or connivance, or was attributable to their neglect. Both the company and the individual can be convicted over the same incident. For the individual that means an unlimited fine and up to two years' imprisonment, with disqualification also open to the court.

What health and safety records should a director personally be able to point to?

Board minutes showing health and safety discussed, with questions and decisions recorded. A dated trail of visits and checks, noting what was found and what was done about it. And evidence that audit or monitoring findings were tracked to closure at board level. Training records and a current, reviewed policy support these, but those three demonstrate active oversight rather than paperwork ownership.

Does delegating health and safety to a manager or consultant protect a director?

Delegation changes who does the work. The duty to oversee it stays with the board, and neglect under section 37 covers what a director should have discovered but did not. So competent help reduces your risk in practice while leaving the legal position unchanged, which is why the records of your own oversight matter regardless of who you employ.

The file already exists

An investigation that tests all of this begins on a day you do not choose, reaching back through months you cannot revise. Whatever your minutes and your managers would say about the last year is already fixed. The only open question is whether the next twelve months build the record you would want read out.

If you want a direct view on where you are personally exposed, and the two or three records that would matter most if HSE ever asked, send a short message describing how oversight currently works in your business. Nick will send it back directly, based on his own reading of your situation.