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HSE prosecutions: will your D&O insurance protect you?

Discover how HSE investigations impact directors and officers and why D&O insurance is essential to protect against legal risks, fines, and reputational damage.

11/11/2025 · 3 minute read

Directors and officers play a crucial role in the management and oversight of organisations, making difficult decisions every day. With this responsibility comes the potential for legal and financial risk and personal liability when things go wrong. One key risk for directors and officers in the UK is the impact of investigations by the Health and Safety Executive (HSE). In this article, we explore the implications of HSE investigations for directors and officers, and how directors and officers liability (D&O) insurance can provide protection in such situations.

HSE investigations

The HSE conducts investigations to ensure compliance with health, safety, and environmental regulations. These investigations can be triggered by:

  • Accidents at work, up to and including fatalities, where police refer the case to the HSE.
  • Incidents, including near misses, when the HSE might issue a Notice of Contravention.
  • HSE inspections.
  • Complaints by employees or members of the public.

The HSE can bring criminal proceedings against companies and individuals, potentially resulting in fines and reputational damage and even imprisonment for individuals.

The primary legislation covering occupational health and safety is the Health and Safety at Work Act 1974 which makes it “the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees” and also non-employees who might be exposed to health and safety risks. It is a criminal offence to fail to discharge this duty.

Some business sectors are more exposed to HSE investigations because they have high-risk working environments. These include construction, manufacturing, and heavy industry.

HSE prosecution examples

  • A Liverpool-based recycling firm was fined £700,000 and a director was jailed for eight months after the death of a 39-year-old employee who was crushed to death in a baling machine. Although guarding and risk controls were in place, they were regularly bypassed, showing that just having controls is not enough. Policies and processes must be enforced.
  • A London-based grocery supplier was fined £1 million after a banksman was killed by a reversing heavy goods vehicle during a delivery in Manchester. The HSE found the company had not implemented a safe system of work for vehicle movements or provided sufficient training for employees acting as banksmen.
  • A recycling company was fined £650,000 after a routine inspection by the HSE found, and filmed, a failure to take steps to prevent reversing vehicles from coming into contact with pedestrians, despite that having been previously identified as a risk. The company was fined even though no one had been injured as a result of the failings.
  • A roofing company was fined £881,000 after workers fell through a roof — twice — after the company had failed to (a) properly plan and carry out works on skylights and (b) conduct suitable and sufficient risk assessments. A director of the company was also prosecuted for failing to ensure staff had the appropriate skills, knowledge, and experience, or to provide the appropriate protections. He pled guilty and was sentenced to 120 hours of community service.

Implications for directors and officers

Directors and officers may be held personally liable for any breaches of HSE laws and regulations by the company, even if they were not directly involved in the incident. 

An action can be brought by the HSE against any director, manager, or other senior officer under Section 37 of the Health and Safety and Work Act 1974 if they believe that a health and safety offence was committed with their consent, connivance, or neglect.

  • Consent: When an individual in a senior position has agreed to or allowed the offence to occur.
  • Connivance: When the individual turns a blind eye to the offence, knowing it is occurring but choosing not to act.
  • Neglect: When the individual fails to take reasonable steps to prevent the offence due to negligence or lack of attention to health and safety duties.

HSE investigations can have significant consequences for these individuals. They may face personal liability, reputational damage, legal expenses, and potential disqualification from serving as directors in the future. The personal financial impact can be substantial, as legal defence costs and potential fines can be significant. In some cases, particularly where the offence has led to death or serious injury, the individual may even be prosecuted and ultimately imprisoned if found guilty.

The best defence is to demonstrate that all reasonable steps have been taken to ensure risk assessments are in place, employees have all the necessary training, and the business complies with all relevant rules and regulations.

The role of insurance

D&O insurance is designed to protect directors and officers from personal liability arising from their actions or decisions made in their capacity as company executives. D&O insurance policies will usually therefore cover directors, managers, and senior officers’ legal costs in defending claims brought by the HSE, though criminal fines are unlikely to be covered. However, having sufficient legal expenses insurance can help individuals to mount a robust defence and avoid fines, disqualification, and imprisonment. D&O insurance may also cover crisis management and public relations costs, for individuals and the business itself, to help mitigate reputational damage.

When considering D&O insurance, directors and officers should keep the following in mind:

  • Policy coverage: It is essential to review the policy terms, conditions, and exclusions to ensure that the coverage aligns with the specific risks faced by directors and officers in relation to HSE investigations. 
    • For example, will the definition of insured person include senior managers responsible for health and safety compliance? Some policies will explicitly name the health and safety officer as a covered individual.
  • Adequate limits: Directors and officers should assess the potential financial exposure they may face in the event of an HSE investigation, and the risk of prosecution given their sector, and ensure that the policy limits are sufficient to cover potential liabilities and costs.
  • Policy exclusions: Directors and officers should be aware of any exclusions in the policy that may limit coverage for certain types of claims or circumstances. Understanding these exclusions can help directors and officers make informed decisions about risk management.
    • Some D&O policies might exclude cover for bodily injury and property damage, but it may be possible to carve back cover for defence costs, enabling a director or officer to defend themselves in any HSE prosecution arising out of an injury or fatality.

Marsh Advisory solutions

Marsh Advisory’s Defensibility and Regulatory Team is comprised of qualified solicitors who offer practical advice to businesses to help them prepare for and hopefully avoid prosecutions. 

Specifically in relation to the HSE, they offer interactive mock trial training covering prosecutions against companies and/or directors. This can help individuals to better understand what happens in the event of an HSE prosecution and their roles and responsibilities regarding health and safety, and to be better prepared if the worst should happen. Speak to your Marsh contact to find out more.

If you have any questions or concerns about how your D&O policy would respond to an HSE investigation or prosecution targeting a director or officer of the company, please speak to your Marsh D&O placement contact.

Marsh Management Liability team

Marsh advises companies of all sizes on their management liability cover.

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Zelda Pitman

Zelda Pitman

Senior Client Executive, Management Liability

  • United Kingdom

Wincy Choi

Wincy Choi

Client Executive, Management Liability, FINPRO

  • United Kingdom

Daniel Cooper

Daniel Cooper

Claims Defensibility Leader, Marsh Advisory

  • United Kingdom

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