Myth One – H&S is only an issue for the company

Under the Health & Safety at Work Act 1974, duties and responsibilities are imposed on directors, managers and employees as individuals. Not only does the employer owe a duty to its employees, the employees owe themselves and fellow employees a duty to take reasonable care for their health and safety.

Myth Two - the board of directors is ultimately responsible H&S

Unless the directors collectively or individually get involved in day to day Health & Safety matters, the buck normally stops with the manager who made the fateful decision.

Interestingly, there has been an increasing number of prosecutions of managers and employees in recent years.

Where employees are reckless, stupid or have a total disregard for Health & Safety, they face firstly being investigated, usually interviewed under caution, and then prosecuted.

Myth Three - unless there was a death or serious injury, we would only face a small fine

Over recent years, following high profile Health & Safety prosecutions, fines for the most serious of cases have been in the millions.

Fines imposed on smaller companies have also followed the upward trend and this is not limited to cases involving fatalities.

What many companies fail to realise is that the courts are now asking for the company's profit and loss account and basing the financial punishment on those figures.

Myth Four - I don't need a lawyer at an interview

Interviews are a regular feature of Health & Safety investigations. There are three types of interview; voluntary, interviews under caution and Section 20 interviews.

Only under a Section 20 interview can you be compelled to answer questions: you are under no obligation to attend a voluntary interview and you would only have to attend an interview under caution if you were arrested, but you can still choose to say nothing.

The right to have a lawyer present applies to voluntary interviews, interviews under caution and Section 20 interviews. Investigating officers sometimes say that it is not their 'policy' to allow a lawyer to be present - do not confuse their internal policy with your legal right to have a lawyer present.

Myth Five - we have policies and procedures in place to protect us from any prosecution

Health & Safety legislation imposes clear duties on you to put your systems in place, implement them and review them on a regular basis.

The law requires you to do everything ‘reasonably practicable’ to protect the health, safety and welfare of your employees and those who come into contact with your business. If your documents aren’t up to date and your policies and procedures aren't properly implemented and audited, you may have a real problem on your hands if something goes wrong.

Myth Six - if I train my employees properly, I will be alright

By law, you must train your workers to an appropriate standard so they can carry out their task safely and without harm to themselves or others.

In the UK, however, and unlike other European countries, the HSE expect employers to take into account that their employees may not always follow their training. Adequate supervision and monitoring is therefore required to show that you have taken all reasonable practicable steps to prevent a workplace accident.

Myth Seven - our insurers will pick up the bill

If your insurers do offer cover for Health & Safety prosecutions it’s unusual for them to extend this to any proceedings in the Crown Court.

Bearing in mind that the maximum fine the Magistrates' Courts can impose is £20,000, most significant Health & Safety cases end up in the Crown Court.

Even where you are insured, you may not be covered if your directors or managers are also prosecuted personally. Most companies want to assist their employees by paying their legal costs but this is often outside of the scope of the policy cover.

Crucially, insurers do not pay any fine that may be imposed and increasingly are very unlikely to cover the legal costs of the prosecution.

Myth Eight - all of our machinery is CE marked, that means it is safe

A CE marked machine is one which has been declared as compliant with the relevant legislation by the manufacturer - but it does not mean it is safe.

With all machinery you should undertake risk assessments, obtain the appropriate warranties and ensure that the contractual maintenance is in place and that all employees are properly trained and assessed as competent before they use the machinery.

Myth Nine - it is easier to plead guilty

The consequences of accepting that you are guilty of a criminal offence are hugely significant.

Firstly, you will have to deal with the financial penalties and possible imprisonment which may be handed out in sentencing.

You must always bear in mind that whilst you may have pleaded guilty in the Magistrates' Court, your case may well be sent to the Crown Court for sentencing where the powers are unlimited.

A guilty plea will result in the company getting a criminal conviction. This is recorded and can be referred to in future prosecutions, either in a trial to show that the defendant has committed this type of offence before, or in sentencing to show that the defendant has erred before.

Increasingly, criminal convictions also have to be disclosed in commercial tender documents and as part of a due diligence exercise when a company is sold.

It is inappropriate to decide to plead guilty without taking specialist legal advice first.

Myth Ten - if contractors breach H&S, they only have themselves to blame

Since the mid-1990s, the law places a large responsibility on the client to ensure that what contractors do on your premises or on your behalf is done safely.

How far your responsibility reaches is very dependent on the circumstances including, for instance, in-house expertise, though the larger the company, the greater the responsibility to check, supervise and monitor the contractor. What you cannot do is to ignore them.

Paul Burnley is head of corporate defence and Stuart Ponting is a corporate defence lawyer specialising in regulatory prosecutions. Both work at DLA Piper UK LLP.