Out-Law Guide 8 min. read
21 Oct 2020, 4:07 pm
In the immediate aftermath of an incident, your first priorities should be to ensure that any injured individuals are being attended to and to secure the area. This guide sets out some practical steps you should then consider to ensure compliance with your legal duties.
Where a death has occurred at work or the incident is serious, seeking legal advice as soon as the immediate first priorities are taken care of is essential. We have set out other health and safety incident scenarios where legal advice would be beneficial below.
The 2013 Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR) place duties on employers, the self-employed and people who are in control of work premises (the "responsible person"), in Great Britain (including certain offshore facilities) to report specified serious workplace accidents, occupational diseases and 'dangerous occurrences' (near misses) to the Health and Safety Executive (HSE). A similar regime applies in Northern Ireland.
The purpose of the RIDDOR regime is to allow enforcing authorities to identify where and how risks arise, and whether they need to be investigated. There are fairly short time limits for making a RIDDOR report and the wording of the report may impact on whether an investigation is carried out by the appropriate regulator. You should therefore think carefully about the wording of any report before it is sent to the HSE and consider seeking legal advice before doing so.
For more on the RIDDOR regime, see our separate Out-Law guide.
Where an incident happens, you will undoubtedly want to investigate to establish the cause of the incident, so that lessons can be learned and improvements made. In some instances, investigation will also be needed so that legal advice can be taken on potential consequences, and in contemplation of civil or criminal legal proceedings.
Partner, Head of Health and Safety
Having confidence that your people know what to do, what to expect and who to contact should not be underestimated. It is worth having a written health and safety Incident Response Protocol in place.
The nature of health and safety law is such that there are often parallel duties on more than one duty-holder, so you may need to consider carrying out your own investigation and taking legal advice even if the RIDDOR report is submitted by someone else. For example, a specified injury to an employee of contractor X on a construction site would be reported to the HSE by contractor X, but principal contractor Y on site should carry out its own investigation to consider the extent to which it was complying with its legal duties under health and safety legislation.
Your internal and external legal teams should be involved in both the decision to carry out an investigation and the investigation itself. The legal team will be able to advise whether any documents created after the incident, including emails, witness statements and the investigation report itself are covered by disclosure requirements owed to third parties such as the HSE or in civil proceedings or whether they are protected from disclosure by legal professional privilege.
Simply writing 'legally privileged' at the top of documents or in the subject line of emails does not protect them. For more information about legal professional privilege, see our separate Out-Law guide.
A number of regulators are responsible for investigating health and safety offences. They include the police (in the most serious cases); the HSE; local authorities; fire authorities and the Office of Rail and Road (ORR), amongst others. The HSE is the main regulator of UK health and safety offences, but the information below applies equally to all health and safety regulators. The way you interact with investigating bodies can impact on the future outcome and likelihood of enforcement action being taken. We can provide training and guidance on incident response and incident investigations in advance of an event occurring.
The police or HSE may attend the aftermath of a health and safety incident. Where a fatality has occurred, the police will progress an investigation considering offences of manslaughter (corporate manslaughter/homicide and gross negligence manslaughter) before deciding whether to hand over the investigation to the HSE.
The police have wide ranging powers, including the power of arrest and will lead the investigation in accordance with the Work-related Death Protocol (Scotland has its own version of the Work-related Death Protocol). This will include (for England, Wales and Northern Ireland) interviewing suspects under caution at the police station under the provisions of the 1984 Police and Criminal Evidence Act (PACE), as set out below. Different rules apply in Scotland and PACE is not relevant, although the police have powers to detain persons suspected of criminal offences for up to 12 hours (which can be extended).
If a health and safety incident has occurred and the police are investigating, seeking specialist legal advice from health and safety experts is essential.
The HSE will lead investigations into health and safety incidents which either did not result in a fatality or did involve a fatality but are not being investigated as manslaughter (homicide) offences. The offences investigated by the HSE can still result in prison sentences and unlimited fines being imposed on individuals and/or companies.
The HSE ha a variety of legal powers available to them where it believes there has been a breach of health and safety legislation, including:
We can provide support and advice in your dealings with the HSE and in managing the interactions you have with the regulators, including the prospects of appealing enforcement notices. For more on potential enforcement options, see our separate Out-Law guide.
An interview under caution is a formal process of interview governed by PACE, which is used by the HSE, police and other regulators when they are considering enforcement action. Interviews are recorded, and any evidence given under caution can be used against a company or individual in criminal proceedings.
Interviews under caution can be carried out either voluntarily, by the police or HSE, or under arrest by the police. However, even if voluntary, the interview process and consequences are the same as if carried out under arrest. If you (the company or an individual in their personal capacity) are invited to a voluntary interview, representations can often be made in writing rather than via a face to face interview.
You will be prompted by the regulator to seek legal advice and it is essential that you do obtain legal advice if a company or individual is invited to attend an interview or make written representations under caution.
During the course of an investigation many individuals will be invited to give voluntary witness statements to a regulator or the police. These will not be under caution, unless the individual is a suspect in which case they will be told this. Employees giving a voluntary witness statement will not need legal advice but they are entitled to have someone attend the interview with them. The HSE also has the power to compel an individual to give a statement; so assistance should be sought to help prepare employees for these interviews with the regulator.
The fee for intervention (FFI) regime allows the HSE to recover the costs of time spent investigating a health and safety incident or material breaches of health and safety law. It is charged at a flat rate of £157 per hour. A FFI can only be charged if the inspector is of the opinion that health and safety legislation has been materially breached. The company will be issued a 'notice of contravention' where this is the case or served with an enforcement notice.
Companies can dispute the FFI, but should seek legal advice before doing so. A challenge may be possible, for example, if you are not in material breach of health and safety legislation or if the amount of the invoice is disproportionate. This is a two-stage process. First, you should query the invoice, within 21 days. If the query is unsuccessful, you can enter the dispute process within a further 21 days.
Effective management of the costs of responding to, and defending, regulatory investigations and prosecutions is an important issue for businesses and their insurers. Increasingly severe criminal penalties, for which there is no insurance, are being imposed by the courts when organisations are successfully prosecuted for health and safety offences. Senior managers and directors can also be at risk of personal prosecution and substantial fines and even custody.
Many insurance policies may provide some cover for the legal costs of dealing with regulatory investigations and prosecutions following a workplace incident, in addition to covering the more routine costs of defending personal injury claims. Most insurers retain a panel of law firms to deal with personal injury claims and will often ask the panel firm to handle the regulatory side at the same time. Policyholders who enjoy the benefit of appropriate legal expenses insurance are nonetheless entitled by law to instruct solicitors of their choice in criminal regulatory cases, where fines are uninsured and can extend in to hundreds or millions of pounds.
For more on the freedom to choose your own lawyer, see our separate Out-Law guide.
You may have already sought legal advice if any of the steps above arise. However there are other health and safety incidents or issues that can arise where it isn't clear if you ought to seek advice or not. The below is a guide as to when legal advice might be appropriate:
These are not hard and fast rules, and the appropriateness of legal advice will be a matter of judgment in each situation.
Be prepared in the event of an incident as it will be one less thing to worry about in the event of a critical situation arising. Having confidence that your people know what to do, what to expect and who to contact should not be underestimated. It is worth having a written Incident Response Protocol in place covering the issues outlined in this guide.