Until relatively recently, the implications of a UK competition investigation for individual company directors were limited to inconvenience, potential embarrassment and higher legal bills. At worst, an individual implicated in an infringement could lose his or her job. This is no longer the case. With the trial of the 'BA four' only weeks away, it is a good time to consider the risks that now exist for directors of companies implicated in anti-competitive behaviour.

The essential facts are that, on 1 August 2007, the UK's Office of Fair Trading (OFT) announced that British Airways (BA) had admitted collusion with Virgin Atlantic Airways over long-haul passenger fuel surcharges, contrary to the Competition Act 1998, and had agreed to pay the OFT a penalty of £121.5m.

In August 2008, the OFT charged four senior BA executives with "dishonestly agreeing with others to make or implement arrangements that directly or indirectly fixed the price for the supply in the UK of passenger air transport services by British Airways and Virgin Atlantic Airways", contrary to section 188 of the Enterprise Act 2002. According to the OFT, the conversations from which the agreements allegedly arose took place between July 2004 and April 2006. All four individuals are pleading not guilty and all except one have now left the airline. As the whistleblower in this case, Virgin Atlantic will avoid fines and its employees will escape prosecution.

Since the OFT's announcement of its prosecution of the BA defendants, the Court of Appeal has upheld the OFT's power to pursue cartel offence cases by dismissing a technical challenge to its jurisdiction. The trial has now been fixed to start at Southwark Crown Court on 12 April. Since dishonesty is a key requirement for the offence, the extent to which the individuals concerned acted dishonestly in the context of the apparent discussions of fuel surcharge increases with their counterparts at Virgin Atlantic is likely to be a key focus of the trial.

In criminal law, dishonesty has objective and subjective elements, so the OFT will be required to prove both that the defendants acted dishonestly by the standards of reasonable and honest people and that they were aware at the time that what they were doing was dishonest by those standards.

A further reminder of the risks faced by company employees caught up in anti-competitive conduct was provided by a recent judgment in an unrelated case. In a novel claim for the English courts, three Safeway companies (now subsidiaries of Morrisons supermarkets) are suing a number of their ex-employees and ex-directors, as well as an ex-chairman, for losses that the companies have suffered as a result of an OFT investigation into agreements between a number of supermarkets and dairies to increase the price of milk. In a judgment on a preliminary issue handed down in January, the High Court confirmed that this claim could proceed. Its ultimate outcome will be closely watched by competition lawyers and company directors alike.

At a time when the increasingly punitive fines on companies for competition law infringements are being vocally attacked by those forced to pay them, it is interesting to see how the UK's greater focus on the role of individuals will play out – both in terms of ensuring compliance with the law and creating a competition culture. It is, in any event, bound to add to the concerns of already overburdened company directors.

Becket McGrath is a competition partner at Edwards Angell Palmer & Dodge.