Sufficient diligence - crucial considerations for school boards of trustees

The loss of a young life on a school caving trip earlier this year was the grimmest reminder of the responsibilities a school takes on.

Those responsibilities lie not only with school staff but also members of the board of trustees. It’s a role of significant responsibility, particularly the duty of due diligence to ensure your school is meeting its health and safety obligations under the Health and Safety at Work Act 2015 (HASWA).

Understanding due diligence

The duty of due diligence is a personal duty imposed on board members. It cannot be transferred or delegated. While state school board members are exempted from prosecution (see section 52 of HASWA), private school board members are exposed to personal criminal liability, with penalties for serious breaches including up to five years in prison and a NZ$600,000 fine.

Irrespective of the exemption for state school boards members, all school board members have duties and they need to be proactive in carrying them out.

These duties encompass six key obligations:

1. Acquiring and keeping up-to-date knowledge

You’ll be expected to maintain current knowledge of health and safety matters relevant to your school, staying aware of best practices and changes in regulations. This should encompass, amongst other relevant risks, dealing with emergencies, mental health issues for young people, the special dangers associated with education outside the classroom and overseas trips, and public health requirements.

2. Understanding operations and associated risks

You’ll be expected to have a comprehensive understanding of the nature of school operations, including their associated hazards and risks. And you’ll be expected to give special attention to those relating to outdoor activities and excursions, because those can present unique challenges.

3. Ensuring resources and processes

The board must ensure the school has appropriate resources and processes in place to eliminate or minimise risks, and that these are actively used. Except in very limited circumstances, a lack of funds will not be an acceptable excuse for failing to eliminate or mitigate risks. Boards are responsible for ensuring resources are allocated so that all school activities are undertaken safely. It is not only about devoting the right resources but also about establishing a system with checks and steps to minimise the potential for a single person's poor judgement or hasty decision exposing people to serious risks. A good health and safety system is one that accounts for human error and puts safeguards in place to prevent individual mistakes from leading to broader harm.

4. Receiving and responding to information

You’ll be expected to ensure that the school has suitable processes for receiving and considering information about incidents, hazards, and risks, and responding in a timely manner. Any concerns raised (for example, by parents, teachers, or students) must be properly assessed, and identified risk factors associated with particular activities should be carefully considered and mitigated before proceeding. The board should provide leadership within its school community to ensure there is active engagement on health and safety matters at all levels.

5. Ensuring compliance

The board must ensure the school has, and implements, processes for complying with all its duties and obligations. This should involve a thorough review of compliance measures and a commitment to continual improvement.

6. Verifying provision and use

The board must verify that the school is providing and using the resources and processes as per policy. This means it’s crucial that the board ensures that policies are not merely present on the intranet or in teachers' desk drawers, but are actively being followed in practice. Regular audits or checks should be conducted to ensure the implementation aligns with stated policies.

Two key points to keep in mind

1. The due diligence duty cannot be transferred or delegated: it is a personal duty and board members must be proactive to ensure they comply.
2. The due diligence duty is separate from, but works alongside, the primary statutory duty of care all schools have to ensure, so far as is reasonably practicable, the health and safety of workers and others (including pupils). Board members are effectively required to interrogate how their school is complying with its health and safety duties.

WorkSafe, New Zealand's primary health and safety regulator, in collaboration with the New Zealand Institute of Directors, has produced a Health and Safety Good Practice Guide for officers like board members. This guide focuses on four key areas of expected leadership:

1. Policy and planning

The board should develop comprehensive health and safety policies and plan their implementation.

2. Delivery

The board must ensure that the policies and plans are implemented effectively.

3. Monitoring

The board should keep track of the implementation and its effects on health and safety.

4. Review

The board should regularly assess the policies and their implementation, making changes where necessary.

The Good Practice Guide records WorkSafe’s expectation that officers will have regard to it when undertaking due diligence and confirms that it is “intended to explain how an officer (including a director) may comply with their [health and safety] legal obligations”. It lists a number of questions that school boards should ask to perform a thorough assessment of their school’s health and safety: 

1. How do the board demonstrate their commitment to health and safety?
2. How do you ensure that the organisation’s risks are assessed and appropriate mitigation measures put in place?
3. How does the organisation involve its workers in health and safety?
4. How do you ensure that the organisation’s health and safety targets are challenging, realistic and aren’t creating unintended consequences?
5. What data is the board receiving on both health and safety? Is this sufficient?
6. How does the organisation ensure all workers are competent and adequately trained in their health and safety responsibilities and accountabilities?
7. Does the organisation have sufficient resources (people, equipment, systems and budget) for its health and safety programme?
8. How connected are you to what happens at the organisation’s work sites? What measures are in place to inform you?
9. Does the organisation have a schedule of audits and reviews to ensure the health and safety management system is fit-for-purpose?
10. How do you ensure that actions identified in incident reports, audits and reviews are communicated to the appropriate level within the organisation and effectively addressed by the organisation?
11. Does the organisation have policies and processes in place to ensure contractors used by the organisation have satisfactory health and safety standards?
12. How does the organisation’s performance compare with other comparable organisations and how do you know?
13. How do you recognise and celebrate success?

These are not responsibilities to be taken lightly. But they are responsibilities that can be acquitted safely and effectively. It is above all a matter of sufficient diligence. 

About the author

James is a partner in Dentons employment and workplace health & safety team based in Auckland, and has extensive experience working in both the UK and New Zealand.

James is experienced in supporting organisations with workforce change, employee relations and disputes, and the employment issues arising out of commercial transactions. He advises clients on the full range of employment issues, including restructurings, investigations, dismissals and disciplinary issues, personal grievances, and contractual and collective issues.