Gillian Harkness-McKinlay
- Partner
Gillian Harkness-McKinlay
Insights | Charities & Third Sector
Liability of Charity Trustees for Health and Safety Breaches
31 August 2022
As a trustee of a Scottish charity, it is important to be aware that you can be held liable for health and safety law breaches. This article highlights the importance of familiarising yourself with your duties as trustee and the interrelation of those duties with health and safety law.
Am I a ‘trustee’?
A charity is an organisation on the Scottish Charity Register – that is clear. However, there can be slightly more ambiguity around the term ‘trustee’ as charity trustees may operate under different titles such as Director, Board Member or Committee Member. The defining factor is that a charity trustee is anyone who controls and manages a charity.
Key legislation
The Charities and Trustee Investment (Scotland) Act 2005 is the main law regulating charities and their trustees. You will find the general trustee duties under section 66; one of which provides that trustees must act with care and diligence. In its Guide for Charity Trustees, OSCR defines this duty as the requirement to ensure that the charity does not break any laws (with health and safety law being expressly given as an example).
So what is ‘health and safety law’? The Health and Safety at Work etc Act 1974 (HSWA) protects employees and others who may be affected by work activities. If your charity has at least one employee, you will have duties under health and safety law. It is the responsibility of the charity (and therefore its trustees) to keep everyone healthy and safe.
Employee versus volunteer – is there a difference?
Trustees should also be aware that the HWSA goes further than protecting only employees – others, such as volunteers, who are affected by work activities will also be protected under the legislation. This is of particular importance within the third sector, where many charities rely on volunteers to deliver their charitable aims. Trustees must therefore take care to consider the status of ‘volunteer’ and whether this applies to anyone working for their charity.
Even where a volunteer does not fall within this ‘affected by work activities’ category, Trustees will owe a common law duty of care to all volunteers regardless of their status. Where this duty of care is breached and, for example, a volunteer is injured as a result of a trustee’s negligence, that trustee may find themselves personally liable for a civil damages claim. Trustees must therefore have a good grasp of the health and safety law applicable to themselves as trustee as well as to their charity and make this a key consideration in all decision-making.
Trustee culpability for HWSA contraventions
What is absolutely key to understand is that, whether your charity is incorporated or not, the HWSA always applies. Under Section 33, if an offence is committed by the charity under the HWSA (e.g. failing to provide safe working equipment to its employees and/or volunteers), the legislation allows for the trustees to be held liable for the offence in addition to the charity in some circumstances. This situation would arise where a charity breaches the HWSA ‘with the consent or connivance of, or attributable to any neglect on the part of’ the trustees.
The recent case of HMA v The Trustees of the Roman Catholic Archdiocese of Glasgow Trust highlights that a trust can and will be fined for contraventions of the HWSA. The offence committed in this particular case was a failure to put in place sufficient control measures to secure keys to an unsafe church loft space from which a member unfortunately fell from height to his death. The trust was prosecuted in the name of the trustees for a breach of Section 3(1) and Section 33(1) (a) of the HWSA. To avoid this, trustees must always ensure that all due diligence is undertaken in relation to health and safety.
Our top tips
- Familiarise yourself with your trustee duties (section 66 of the Charities and Trustee Investment (Scotland) Act 2005).
- Understand how health and safety law applies to you and your charity to ensure that all decision-making is HWSA compliant and appropriate measures are in place.
- Promote leadership on health and safety from the top of the organisation, and potentially appoint a lead trustee to have responsibility for this area of the charity’s activities;
- Ensure all employees, contractors and volunteers are aware of the guidelines and safety measures that are in place and provide relevant training;
- Implement a ‘lessons learned’ culture that communicates information about mistakes without adverse or serious consequences;
- Carry out risk assessments to identify significant risks to your employees, contractors and volunteers and implement effective control measures and policies which are subject to regular review.
If you are a charity trustee and would like further advice on the interrelation between your trustee duties and health and safety law, please contact Victoria Simpson.
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