Posted By Robert K Lewis
Just to confuse you further I think it was last months SHP that reported the new ruling on S37 - Matters which a director ought to have known.

Vicarious liability has only a real effect in the civil courts where a claim is being made. An employer is liable for his employee acting in the course of the employees duties.

S37 concerns the actions and inactions of directors and senior company officers. For instance turning a blind eye to actions known to be unsafe or failing to manage in a manner that ensured that he/she was aware of the information that ought to be known by a person in that position. It comes back to the very 19th century stance that persons who put people to work should take responsibility for exposing them to risk - I did not know even though I could have done is not an acceptable answer.


Thats my ten pennyworth anyway

Bob

Posted By Tarquin Farquor
Chris,

Practically it widens the scope of Sec 37 actions meaning that they will be easier to bring and succeed.

Part of the trade off for not having regulated directors duties and only guidance?

Regards,

TF.

Posted By David Combes
Hi Chris
I have just read the latest case and I can see why you are confused.

S.3 of the Act places a duty the employer and S.33 creates an offence of strict liability for a breach of that duty. Strict liability means that no mens rea (guilty knowledge) has to be proved as to a single element of the actus reus (state of affairs). Essentially if the circumstances arise then an offence is committed.

The employer is vicariously liable for the acts of the employee where the offence is one of strict liability. The failure of the employee is therefore the failure of the employer. The duty under S.3 can not be delegated and the Company, in this case, is liable for its own failure of duty through its employees.

When it comes to S.37 there are two main issues. Firstly who is liable? Tesco v Natrass applies and it is those persons named within the section who are the alter ego of the Company i.e. the directing mind. The employee driving the fork truck would merely be "the hands"carrying out the actions of the directing mind, the MD.

Secondly What are they liable for? S.37 makes it clear that it is for "consent, connivance, or neglect" Consent and connivance both require mens rea or knowledge. Neglect has been defined as "some failure to do something that a person ought to have done" (R v Mc.Millan Aviation Ltd 1981, Wotherspoon v H M advocate)
This would encompass the situations where
i. the Director knew but did nothing;
ii. he should , by reason of the circumstances, been put on notice of the failure; and iii. he suspects but did nothing to see if those suspicions were justified.

I trust this clarifies the situation.

Regards