In the Aftermath
- Date: Wednesday 21st March 2018
- PDF: Download
If the worst should happen at your organisation, what should you bear in mind when the investigators call? Solicitors David Thompson and Amy Cameron offer a brief guide.
No employer wants a workplace accident, or worse a fatality. But, unfortunately accidents do happen and can result in devastating consequences for the injured worker, their family, as well as the company and its employees.
Additionally, both individuals and organisations can be the subject of a police investigation, in suspected manslaughter cases, where they will take primacy. The HSE will take primacy in non-manslaughter fatality or injury cases. In fact, there doesn’t have to be an injury for the HSE to bring court proceedings.
A prohibition notice could also mean cessation of work in the area of the business where the accident occurred. The time spent with investigating authorities, alongside the impact on customers, could also threaten the company’s contractual obligations to its customers.
Here are some brief pointers on the steps you should take in any prosecution, to help both the subject of the investigation and the HSE.
Notification of an event
Many types of serious incident, including fatalities, accidents resulting in specified injuries to workers or the hospitalisation of non-workers, need to be reported to the HSE within 10 days. Certain other work-related accidents, resulting in an employee's or self-employed person's absence from work of seven consecutive days or more, need to be reported by completing a RIDDOR report within 15 days.
Accidents resulting in a worker being incapacitated for over three days must be recorded in an accident book, with no obligation to complete a RIDDOR report.
Non-fatal accidents to members of the public (non-workers) only need be reported if they result in the person being taken directly to the hospital for treatment.
What actions should you take immediately?
In a police investigation in a suspected manslaughter case, or an HSE investigation, one of the first actions is to interview staff and then management. This could be under caution, or as a witness to gather evidence.
In our experience, before interviewing direct line or senior management, the police or the HSE usually gather evidence from co-workers and staff/employee representatives, look at the method of work and how it is carried out, examine whether there have been reviews of work processes to ensure the safest systems are employed. The police typically use the HSE’s expertise in relation to work processes and safe systems of work.
If the prosecution suspects, or has grounds to suspect, that an offence has been committed, interviews of individuals in their own right, or as representatives of the company, will be under caution. Therefore, management are usually formally interviewed after co-workers have provided witness evidence of safe systems, or lack of them.
Although you should co-operate with any investigation, you should seek specialist legal advice immediately, ideally prior to any contact with the investigating body. Your solicitor will advise you on your obligations in terms of reporting the incident, and provide you with advice in relation to any potential interviews.
In certain circumstances, senior managers may be advised not to attend interviews under caution as it’s not the solicitor job, or that of an organisation’s senior executives, to assist the prosecution in bringing charges.
If a director is called in for an interview under caution, either on behalf of the company or in respect of possible personal prosecution, a solicitor should be present to ensure questioning is relevant to any potential liability.
If machinery was involved, the HSE may serve a prohibition notice forbidding its use until it is satisfied that the full cause of the accident is understood, and that any remedial steps have been put in place.
The company should carry out an immediate investigation. Policies and procedures should be reviewed to minimise future incidents, including risk assessments, training procedures, management responsibilities and maintenance of machinery (if applicable).
It’s prudent to take witness statements to ensure you have a clear account of the events while they are fresh in people’s minds. Insurers should also be notified at the earliest opportunity.
Directors and/or senior management should lead the investigation. They must be able to demonstrate that they have had continuous and effective control of the company and its undertakings. It’s not a defence to say that they delegated health and safety to others, as this will not absolve them of liability.
Even the best run companies can find themselves under investigation. A large part of the investigating authority’s job is to determine how a company is run by reviewing the paper trail and evidence available.
For investigations, good record keeping and active management stands companies and directors on solid ground. Do this by showing that the company’s policies and procedures are appropriate for your sector, and implemented rigorously. Ensure all documentation is complete and up to date, from general policy reviews to task-specific risk assessment.