12 Jul 2024
The voice of the independent garage sector

Handling a Health and Safety Investigation

H&S guidelines have tightened up to the point – deliberately – so organisations can’t do anything but obey the law

BY
Parminder Takhar, Litigator, commercial litigation department, Wright Hassall

 

Accidents happen, but what organisations do once an incident occurs will have repercussions on how an investigation proceeds and its effects on the organisation concerned.

The primary legislation used to enforce health and safety in England and Wales is the Health and Safety at Work etc Act 1974. The Health and Safety Executive (HSE) is the lead regulator under the Act and is responsible for enforcement of it in relation to higher risk settings such as construction, factories, and agriculture. Local authorities have responsibility under the Act in relation to lower risk settings like retail, leisure, and office premises.

Penalties following conviction for breaches of the Act can be significant. Fines on conviction are now based on the sentencing guidelines in the Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences, Definitive Guideline.
The obligation to formally report a health and safety incident itself is governed by the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 – known as RIDDOR. This places an obligation on employers and those responsible for work premises to report deaths, certain types of injury, diseases, and dangerous occurrences to the regulator. It is a criminal offence to breach the notification requirements of RIDDOR.

An incident occurs
When a health and safety incident occurs, a check should be undertaken to determine whether the incident is notifiable to the regulator under RIDDOR. If it is reportable, the relevant enforcing authority must be informed by the quickest practicable means without delay; a RIDDOR report must be submitted within 10 days of the incident unless the accident results in a more than seven-day incapacitation of a worker which itself must be notified within 15 days of the incident.

Once a RIDDOR report has been submitted, the HSE is likely to conduct a site inspection and may commence a formal investigation. If there has been a workplace fatality, the Work-Related Deaths Protocol gives the police primacy over the investigation during the interregnum whilst they consider whether to investigate offences of corporate manslaughter and/or gross negligence manslaughter. In circumstances where no manslaughter investigation is to take place, or in cases where there is no fatality, the HSE or local authorities will lead the investigation.

There will often be much going on in the immediate aftermath of an incident. This means it is important to get lawyers on site as swiftly as possible to provide advice to the company and support those dealing with the incident.

It is also important to have an emergency plan in place prior to such incidents that can be put into action in the event of an incident. This should include having someone in place to co-ordinate with the emergency services and the regulatory authorities.

It is also vitally important that procedures are in place to look after the welfare – physical and emotional – of those who may have witnessed the incident. It is just as important to make provision for professional counsellors to attend site for group or individual consultations; follow-up telephone hotlines should be made available.

The investigation
HSE inspectors have wide investigatory powers by virtue of section 20 of the Act. It is important organisations obtain legal advice in respect of this area.

The Act allows inspectors to be present at sites to conduct investigations. It also gives them the power to require the production of documents and authorises them to take and retain copies of these documents. Normally, the organisation is entitled to retain original documents. It should be noted that HSE inspectors are not entitled to obtain documents that are legally privileged. It is therefore advisable for a solicitor to review any documents before they are handed to the HSE.

Inspectors can compel any person they believe has relevant information to answer their questions. This can be extremely onerous, and it is an offence to obstruct an inspector in the course of their investigation by failing to answer such questions. Generally, the HSE prefers to take statements from witnesses using voluntary statements under section 9 of the Criminal Justice Act 1967. Interviewees should ensure that such statements are entirely accurate and based only on fact before signing the statement.
Inspectors tend to engage in a very wide-ranging information gathering exercise at the outset of these investigations. The approach narrows as the case progresses and the key issues in the case are identified.

Companies the subject of investigations must co-operate with the HSE. However, they should retain as much control over the process as possible. In particular, they should keep a list of all documents handed over to the HSE as this will normally indicate the type of issues that are being considered by the inspector which will assist with the preparation of the defence later in the case.
Following an incident, HSE inspectors can issue a Notification of Contravention. This identifies laws that the HSE believe have been broken, is normally sent as a letter by the HSE inspector who is responsible for the investigation. They generally arrive a few weeks after the incident but not always.

They are required to identify the health and safety laws that the inspector believes have been breached; the reasons for their opinion; and specify that a Fee For Intervention (FFI) is payable to the HSE. It will normally set out the steps required to achieve compliance.
Service of the Notification of Contravention is essentially the vehicle that enables the HSE to recover its costs of carrying out its regulatory functions from those found to be in material breach of health and safety laws through FFI.

The FFI is based on the time spent by inspectors at hourly rates determined by statutory instrument. The Health and Safety and Nuclear (Fees) Regulations 2021 set the hourly rate for 2022/2023 at £163 per hour.

These notices can be served on employers; self-employed persons who put others at risk; public and limited companies; LLPs; and crown and public bodies.

These fees are generally invoiced quarterly throughout the life of an investigation up to the enforcement decision. It will include all work needed to identify any material breach and all work to ensure that it is remedied.

HSE’s invoices can be significant and can exceed £100,000 over the course of a fatal accident investigation. Payment is due within 30 days of the date of each invoice and the HSE will pursue any failure to pay as a debt through the civil courts. Invoices should be carefully reviewed as they often contain errors.

More notices
Health and safety inspectors have the power to serve Improvement Notices or Prohibition Notices which are formal notices. These are burdensome and it is an offence not to comply with them; the penalties for a breach can be significant.

Improvement notices can be served where an inspector is of the opinion that the recipient is contravening health and safety law or has previously contravened health and safety law, in circumstances that make it likely that the contravention will be continued or repeated. The purpose of the Improvement Notice is to require the recipient to take steps to remedy the breach in a specified time period.

Prohibition Notices can be issued where the Health and Safety inspector is of the opinion that an activity takes place or is likely to take place that involves a risk of serious personal injury. It requires the activity to cease – an interregnum – until remedial measures are taken to deal with the risk of injury and the breach of the specific laws.

Lastly, Accident Investigation Reports are an important tool to help a company understand why an accident has occurred and the causes and root causes. They are vitally important in preventing future incidents of a similar nature.

However, HSE inspectors can compel a company to provide its accident investigation report if it is not legally privileged. In effect, this will lead to the company’s own document being used against it in any subsequent proceedings.

But if such investigations are commissioned by a solicitor, on the basis that litigation is contemplated and that the sole or dominant purpose is dealing with that litigation, it will be protected from disclosure even where the HSE could ordinarily use statutory powers to require the disclosure of the report. If a document is not privileged at the outset, it is impossible to recover privileged status.

In summary
HSE investigations can be lengthy, time consuming, complex, and can have significant implications for organisations and should be treated with the utmost seriousness. While it’s better not to have incidents in the first place, it should be recognised that they do occur, and observance of the law will make a difficult situation easier to manage.