With the introduction of more punitive sentencing guidelines for health and safety offences in 2016, organisational safety was put into sharp focus. Fines for businesses in violation of health and safety law across all sectors have since sky-rocketed. As a result, safety processes are quickly moving higher up the board agenda.
When a workplace accident or incident occurs, the immediate steps taken by a business are critical – especially as these actions can be scrutinised by the relevant regulatory bodies during their investigation. Whether operating in the care sector or construction industry, a workplace incident should always be responded to in the same way. In an ideal world, every organisation should have an agreed incident response plan in place; however, for those that do not currently, there are some clear guidelines that should be followed.
Secure the area
An immediate priority following an incident should always be securing the area. This is to preserve the scene and prevent any evidence being disturbed. It is also crucial in ensuring a secondary incident does not happen.
Legal privilege and advice
Remember that depending on the incident, there could be any number of regulatory bodies involved in the investigation, and providing evidence will be key in preserving the business’ position. The way you handle the investigation internally can, and will, come under scrutiny.
The principle of legal privilege can enable a client to avoid disclosing certain documents and communications to regulatory bodies during a criminal investigation. Bringing in a legal representative at the early stages of an investigation can establish this.
Securing legal advice at an early stage can also help to mitigate the process – solicitors can act as a filter between your organisation and the regulatory bodies, ensuring the flow of information is controlled and nothing is misrepresented. The presence of a legal representative also becomes critical when interviews under caution take place.
Gather evidence
Taking digital photographs of the scene which can be used at a later date is always helpful. You should also speak to individuals who witnessed the incident to get an initial account of events. If a regulatory body does investigate, they will most likely want access to the health and safety policy, risk assessments, method statements, any training records and maintenance and inspection records for any equipment involved. Start collating a bundle of core documents in preparation for the requests coming in.
Control the communication
Appoint a single point of contact within the organisation who will oversee the investigation internally, as well as coordinate engagement with the various regulatory bodies. This person may require a small internal team to assist in the investigation, but circulation of information and legal advice within the business should be limited – having too large a team can undermine legal privilege.
If you are dealing with a major incident, providing accurate information to employees will be important to ensure the incident is not misrepresented internally or externally. You may also want to provide guidance around spread of information outside of the organisation, particularly on social media. Reputational concerns for your business also need to be managed at such a critical time.
Co-operate with regulatory bodies
Notifying the relevant regulatory bodies about a health and safety incident is of the utmost importance – in some cases even if it is a near-miss. Failure to do so is considered an offence, especially in situations where a dangerous occurrence has taken place e.g. where the incident has the potential to cause serious injury or death.
When an incident has taken place, you must be seen to cooperate with regulatory bodies whilst still protecting your position. Always remember that failure to cooperate could be used against your organisation at a later date in any subsequent prosecution.
Preparation, preparation, preparation
All of these steps can be made easier through the right preparation. Every business – irrelevant of size – should have an incident response protocol in place. A plan is only effective if it is executed efficiently, so it is always worth practising this protocol in a mock ‘doomsday’ scenario.
Your plan should include allocating roles and responsibilities within the organisation, should an incident occur. This not only provides clarity of response but ensures there is no overlap. Crucially, if you do have a protocol in place, your organisation must be seen to be complying with it. If not, this could be deemed to suggest you are trying to hide something.
Finally, always remember that when a regulatory body attends a workplace, they have extensive powers and are entitled to review the whole premises, checking compliance across all operations. You must be prepared to provide any information or documentation they might require.
Sally Hancock is a partner at law firm BLM, working within the Manchester office as part of the firm’s leading Health & Safety team. Sally has substantial experience in the most serious types of incidents which result in corporate/gross negligence manslaughter and Health and Safety at Work Act 1974 investigations and prosecutions. She advises clients on crisis management and provides support in the immediate aftermath of an incident. That advice extends to all stages of a case including regulatory body investigations and representation at interviews under caution and court hearings. Cases of this nature often involve her representing clients in the coroner’s court. In addition, Sally delivers training to customers and health and safety groups on a range of health and safety topics including crisis management, directors duties and HSE prosecutions and sentencing.
