In this series of Podcasts by Brodies, we discuss health and safety law, what happens in the immediate aftermath of a major incident or accident in the workplace, the process by which they are investigated, and the key points that all organisations need to be aware of when it comes to health and safety.

This is a significant area of the law that seeks to protect individuals and organisations when the very worst happens. In this episode we speak to two lawyers from Brodies LLP, Paul Marshall and Ramsay Hall, both experts in crisis management and health and safety, who are often among the first on the scene should if there is a major incident or accident in a workplace, they will outline the immediate considerations should be for the organisations involved and the power of regulators and other agencies, including the police.

Follow the link to listen to 'Incidents and accidents - part two'. You can also find us on Apple Podcasts, Spotify or wherever you usually listen to your podcasts by searching for "Podcasts by Brodies."

The information in this podcast was correct at the time of recording. The podcast and its content is for general information purposes only and should not be regarded as legal advice. This episode was recorded on 30/10/2023.

David Lee, Podcast host

David Lee is an experienced journalist, writer and broadcaster based in Scotland. He is the host of Brodies' podcast series Podcasts by Brodies.

David Lee, Podcast host]

Transcript

00:00:06 David Lee, Host

Hello and welcome to Podcasts by Brodies. My name is David Lee, and in this podcast, part of the Health and Safety series, we discuss the aftermath of major health and safety incidents and what happens from a legal perspective. A major health and safety incident could affect any organisation at any time. As well as being very distressing for all involved, it can also cause repercussions for years to come through lengthy investigations by the authorities, potential legal action and possible reputational damage.

We're covering this topic in two parts and in part one, I'm joined by two Brodies experts to discuss what happens when a call comes in about a serious health and safety incident and how Brodies then responds.

For part one today, I'm joined by Paul Marshall and Ramsay Hall to give their expert views drawing on their personal experience of real life cases on how best to manage what can be an extremely demanding and stressful time for any organisation. Paul is a partner who leads Brodies Corporate Crime and Investigations practice group and specialises in crisis management, while Ramsay is a legal director who is also a member of the Corporate Crime and Investigations practice group. Welcome to you both and first of all, Paul, if I can come to you, what do we mean when we talk about health and safety incidents?

00:01:32 Paul Marshall,Partner

Well, I would say any event happening in a workplace which gives rise to the risk to health and safety of people who are there, that could be people who are working in that location or it could be members of the public and what's important to note is the event might result in harm, but that's not necessary, it's the risk to harm that's important here, where an event gives rise to a risk to harm, that's a health and safety event or incident.

00:02:02 David Lee, Host

Ramsay, give us some examples, what are the common causes of this type of incident?

00:02:09 Ramsay Hall, Legal Director

So annual statistics have been produced by the key regulator, that's the h

Health and Safety Executive and they're commonly known as HSE and HSE statistics explain that the most common causes of incidents are working at height, interaction with machinery, such as being struck by a moving vehicle for instance, manual handling and then slips and trips. I think it's worth noting in that context that 135 workers were killed in work related accidents in the period 2022 to 2023, with approximately 565,000 workers sustaining an injury at work. The HSE statistics also show that certain sectors are more likely to experience health and safety incidents than others, so construction, agriculture, food and drink and manufacturing are at the top of the list.

00:03:04 David Lee, Host

So, Ramsay, you said 135 deaths in the last recording period, but 565,000 injuries. So, this is not something that's happening in isolation to a few organisations, it’s something that's right across the board of all organisations.

00:03:25 Ramsay Hall, Legal Director

It will happen in sectors every single day of the working week, David, so it's not unique to one particular sector, it happens across the board.

00:03:35 David Lee, Host

Paul, let's assume your organisation has one of these incidents, where do you start? What is the first actions you should take when an incident happens?

00:03:48 Paul Marshall, Partner

So, the first thing is, you should have a plan, it would be a terrible thing if an event happens and you don't know what you're going to do next. So, you must have a plan and there'll be some basic things that that plan should cover. You'll want to make sure you're taking care of the people who are involved in the incident and that might be the people who are injured or those who are witnesses to the incident. You want to make sure the area where the incident happens is made safe and that will involve probably collaborating with or working with regulators because they'll be on the scene very early and because that will be the case, you'll want to have important communications. So, that's not just with the regulator, but with the employees, shareholders, customers, your supply chain, people who are going to become aware of this incident and identify that it's relevant to them, you must have a plan for communications with those stakeholders. You will want to investigate, the regulator will have a team on the ground early investigating, but it's really important for an organisation to have a good handle itself on what has happened and often your team will have the people with the expertise to most quickly understand what has happened. So, you’ll want a team of experts on the ground who can understand what has happened and they should be working to some set instructions, they shouldn't be detectives who are just trying to follow clues, they should have a term of reference which is saying ‘here's what's expected of you’ and then beyond that, those immediate actions, you'll start to look at the medium term of communications with interested parties going forward and ongoing cooperation with the regulator.

00:05:27 David Lee, Host

We'll pick up on some of those points you've made there, Paul, but just to come back to your very first point, have a plan. You must have seen over the years a very varied range of good and not so good preplanning, what’s the typical situation if you come in? Do most organisations have a good incident plan in place?

00:05:50 Paul Marshall, Partner

Most do not, and that's because you're hoping that the worst doesn't happen, so most organisations may have something, most of the time it will not have been tested, and I suppose you can think about it from one end of the spectrum or the other, a very detailed chapter and verse plan that your people can't understand or never look at or won't follow, that won't work, equally a one page document with no real instruction or guidance won't work either. So, probably the best advice there is that you know your people, you know your organisation, you know what they respond to, draft something, have something that they will be able to engage with.

00:06:39 David Lee, Host

We'll come back to some of those other points that you mentioned later on, first of all, to come to you Ramsay, regulators. Paul mentioned the regulators there, who's involved after an incident happens? Who are these regulators that will come in and investigate health and safety incidents? Very pertinently, from an organisational point of view, what powers do they have?

00:07:02 Ramsay Hall, Legal Director

So, the HSE, the health and safety executive are the key regulator in this space. HSE also work with other authorities. So for instance, in the event of a fatality following a health and safety incident, HSE and the police authority will conduct a joint investigation. You also asked about the powers of regulators, so the HSE have their own statutory powers and that includes entering premises, directing that certain areas are left undisturbed, taking photographs, measurements, samples, seizing information, including documentation and then asking questions. Just on the asking questions point, it's really important to be aware that there's a difference between someone answering HSE questions voluntarily or being compelled to do so and a compelled interview is sometimes called a section 20 interview and the reason that's important to mention is because it's important to understand that whether an interview is compelled or not, impacts the way in which HSE can use the answers provided. The sensible course of action is to take legal advice on the point before any HSE interview.

00:08:18 David Lee, Host

Just to go into that in a bit more detail, Paul, what's your practical advice about how an organisation that finds itself in this situation should engage with the regulator when the investigation is ongoing?

00:08:33 Paul Marshall, Partner

As Ramsay said, there are statutory powers that regulators have, like the HSE for example. So, probably the best way for an organisation to think about it is that this is not a free for all, there are rules and the rules govern how a regulator can act, and the rules also govern how the organisation can act. Yes, this will feel like common sense and fair play, when something serious has happened, a regulator has the right to come in and understand what has happened and ask basic questions to get a basic understanding of the event or the incident. As Ramsay said before, that's where ideas like compelling information from witnesses can come into play. But if you're the organisation on the other side of that, you'll want to cooperate in an appropriate way with the regulator. So yes, having legal advice to understand what powers the regulators are relying upon is important because you may, as a matter of law, be required to provide certain information, but other information may be above and beyond that and you might still choose to give that information to the regulator, but it's really important you making conscious decisions and not feeling like you're being compelled to produce a whole lot of material. So take legal advice, keep a good record of your engagement so if you're producing material evidence information, make sure that there's a good record kept so that in two months time you know what you have and have not done and what engagement you've had and be alive to the fact the cooperation will not just be in the few days after the incident, the cooperation with the regulator will go on for some time, it could be a year, could be more. Ideally you will have people on the ground who have relationships with the regulators already because many sectors the regulator doesn't just come in when a serious event happens, they have an ongoing supervisory role. So, often you will have people in your teams on the ground who have those good working relationships, that's fantastic but what you should be doing after an event or incident is making sure that communications with regulators are carefully managed so the organisation knows what information is going across and at any moment in time, understands who is talking to the regulator.

00:10:50 David Lee, Host

Ramsay, what about the communication going the other way? What about talking to your staff? Obviously, if an event of this nature happens, there's a lot of chatter in the office. How should an organisation be communicating to its own team about what's happened? What should be said and what shouldn't be said?

00:11:08 Ramsay Hall, Legal Director

Absolutely, David. This is a really important point. So, engaging with employees, particularly those close to an injured colleague is very important and can be difficult. My first recommendation is that an organisation should engage in a calm and professional manner, explaining that a thorough investigation will be undertaken, that employees may be asked to cooperate with that investigation and that, as Paul's flagged, the entire investigation may take a significant period of time, months, perhaps years. Probably also worth identifying at the outset, a point of contact within the organisation to handle questions from employees, so to bring some structure to the queries that will be coming from employees. It's vital to explain to employees, in a professional manner, that they don't discuss the incident or the investigation into the incident with any third parties, that everything as far as possible stays within the organisation.

00:12:07 David Lee, Host

Thanks very much. Paul, to flip that around, what about that external communication? Particularly if the media comes calling, for example, if we're talking about a serious incident, how should that external communication be handled to try and avoid or at least mitigate against potential reputation?

00:12:30 Paul Marshall, Partner

Of course, really important. As I mentioned at the outset, having a plan is key here, and it's the same with external communications. Most organisations will possibly have regular communications they make with the media or with third parties, but you will not be familiar with communications following crisis event and for that reason it's really important, again, to have that rulebook or playbook in advance, so that you know, in the event the bad thing happens, how you're going to communicate. So, as much as possible, there should be a structure where this is written down. Now, any media strategy here needs to be alive to the risk of communication and all the way through, you'll be competing. You want to make people, employees, third parties, aware of what's happening. Equally, you can't communicate in a way which exposes the organisation to criticism or more serious consequences. I'll give you some examples of that. When an incident has just happened, there's usually a tremendous pressure on an organisation to get ahead of the curve or get its message out there, the problem with that instinct is that in the first few hours, possibly even days after an incident, you probably will not have a complete grasp of what has happened, you won't have all the relevant evidence. So, the danger there is making communications in good faith in the early stages, which turned out later to be inaccurate, and that's a really negative place to be. If you want to communicate early, be cautious about what you know and what you can say safely. In a similar way, if there's a regulator, like the Health and Safety Executive, on the ground and they are literally looking and inspecting what has happened, you really want to take care that you're not putting out communications which are designed to influence or may appear to be designed to influence the investigation or direct the HSE or criticised the regulator in some way. It's really a negative place to be that won't end well for the organisation, it will put the relationship with the regulator under pressure and will have the opposite of the effect of achieving the best outcome that you're looking for.

So, those two points, the early stages and the dealing with the HSE or managing communications with HSE at your premises, they're really short to medium term, the medium to long term pieces, unfortunately, if the matter results in the court process and we'll look at that in separate sessions later, if there's a court process and there's a prosecution falling from this incident you really need to be very careful as an organisation that you're not making public statements which might be perceived as interfering with that core process. At its worst end, you can end up in a situation where an organisation or individuals connected with the organisation or guilty of contempt of court or viewed as being at risk of contempt of court, if you're disrespecting the court process by putting your own messages out there. So really, really careful if there's an ongoing process not to do anything that might criticise it.

So, my basic principles are have an agreed message in your media plan at each stage of the process, that's outgoing messages for incoming messages or inquiries from the media, have a single point of contact or single team who are going to take all those requests for information and then make sure that everyone else, and this goes back to a point Ramsay made earlier, in the organisation knows if they're contacted they need to send that contact to that central team and, as I said, avoid communications or about the substance or the detail of the incident during a live court process.

00:16:41 David Lee, Host

Thanks very much, Paul. Very helpful there. Ramsay, we're very much talking constantly about internal and external here. We've talked quite a bit about the external investigation that's going on and how to respond to that. What are the advantages of actually carrying out your own internal investigation into what's happened? How should you go about structuring that?

00:17:04 Ramsay Hall, Legal Director

There are several benefits, David, to carrying out an internal investigation. First, it creates an opportunity to understand why an incident occurred and on that basis, corrective action can be taken to remedy any issues quickly, quickly and proactively. Secondly, any remedial action taken will demonstrate to a regulator, like the health and safety executive, that the business is operating in a responsible manner and is committed to its regulatory obligations. Third and finally, in the event of enforcement action, that Paul spoke about, conducting an internal investigation and taking action to address the issues identified will be helpful mitigation that will help lower any penalty to be imposed. Then turning to the structure that you asked about, David, it's vitally important to have a clear plan in place before embarking on an internal investigation and in that respect, I'd say that there are three key points for an organisation to have. First, record the focus of the investigation and the steps that will be taken as part of it and one way to do that is to have a terms of reference document setting out the scope and the focus of the investigation, that helps to ensure that the organisation has a focus and that the investigation stays on track. Second, identify an investigation team, this is really important, having the right team in place to carry out an investigation will help ensure that it gets productive and the team should include someone with health and safety expertise so perhaps a compliance manager, it should also have someone with an understanding of the project or the activity in which the incident occurred and that might be, for instance, a site agent. Finally, there would also normally be oversight from a senior part of the business, director level involvement for instance. In terms of the role of external legal support in connection with the conduct of an investigation, we have experience of conducting investigations on behalf of businesses following incidents. In addition to using our experience to help guide an investigation, the benefit of legal involvement is that, provided an investigation is structured in the right way, legal privilege can apply to the material produced in the course of an investigation so, for instance, an investigation report and what that means is that the business cannot be required to produce that material. So, for instance, it's not required to produce that material to HSE unless the business chooses to do so.

00:19:40 David Lee, Host

Again, on the other side of the coin, back to the regulators, Ramsay, we've touched on this a little bit, but what are those options that are open to the regulators when their investigation is concluded?

00:19:54 Ramsay Hall, Legal Director

They have several options. First, either during the course of or at the end of their investigation, they can issue notices and those notices can either require certain improvements or prohibit certain works. Those notices can be challenged by way of an appeal. Second, at the conclusion of the investigation, HSE will decide either to take no formal action or to report matters to the prosecution body and in Scotland the sole prosecutors called the Crown Office and the Procurator Fiscal Service are often referred to as The Crown. If HSE identify a health and safety breach, they'll issue what's called a notice of contravention which is in essence a letter from HSE to the business explaining the breach that they've identified. HSE will then report to The Crown recommending a prosecution in respect of the breach that they've identified. Now the crown, who are the prosecution body in Scotland, has a specialist health and safety team who receive reports from HSE and they decide whether to raise prosecution proceeds.

00:20:59 David Lee, Host

Paul, we will go into some of those next steps that Ramsay has just covered there in part two. Just to wrap up and to summarise what's your overall advice to any organisation caught up in a health and safety incident and what approach in your experience characterises those who respond most effectively? What’s the good practise that you see?

00:21:25 Paul Marshall, Partner

I think you have to start from recognising that any health and safety incident will be a significant event for a business or an organisation, it shouldn't be part of their day-to-day operation, it will be remarkable, it will be disruptive, it will have a significant impact. Then the reassurance to try and apply there is that, as I mentioned earlier, the health and safety regime provides a framework that's going to help the business navigate through that event or incident. If you know the framework, it's going to put you in a good position to navigate and come out the other side wiser I think is the best way to put it. It gives a framework for the regulators to work with, it provides safeguards to the organisation to help you cooperate. So, I think number one, make sure you've got a team from within the business and out with the business. Make sure you've got that team supporting you that knows the framework and you’re clear on the process, and then you can trust the process and you can then work in a positive way within that process. Really important piece is learning lessons from the incident so that you do emerge wiser as I’ve said. What is often the starting point, and it's the worst thing to do, but it's the most human thing to do, is to, when something bad happens, you want to move on, shrug it off, brush it away, minimise it because that's not success, that's something challenging success so you want to move beyond it. But if you do that without learning the lessons that usually leads to the poorest outcome for your organisation, and it puts you at risk of future events for incidents. So it is that truism of there is an opportunity of that crisis situation to learn and make your organisation better.

Some final takeaways from me, do make sure you investigate to understand what has happened, don't go with the easiest answer or the quickest answer to try and get beyond it because if that's just scraping the surface of what has caused the incident you're going to face something similar in future, so be clear about getting a full understanding of what has happened, because then you can stop it from happening again. Don't view the regulators as an enemy or someone not to be trusted, but engage constructively with them within that framework I mentioned. If you learn the lessons of what's happened, you can make improvements that really put your organisation in a better place going forward and all the way through, and this is a really tough bit, do communicate in an appropriate way with everyone who is an interest so the regulator, your own employees, people in your supply chain, other stakeholders, is the real trick there is being able or the challenge there I should say is being able to keep your doors open, communicate in a positive way while dealing with what's a really traumatic and demanding situation. But if you can do all of that and come out the other side, we often see that businesses and organisations really are able to be positive after the event and feel that they have what matured to the process as I would put it.

00:24:44 David Lee, Host

Thank you very much indeed to Paul Marshall and to Ramsay Hall for their excellent insights today. Paul summarised very well there, but just listening there, have a plan at the very beginning, don't dive in, take your time, communicate clearly with everybody, have specific points of contact and above all else, learn lessons and of course, take good legal advice.

You've been listening to Podcasts by Brodies, where some of the country's leading lawyers and special guests share their Enlightened Thinking about important issues and current developments having an impact on the legal sector and what that means for organisations, businesses and individuals across the various sectors of the UK economy and wider society.

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Contributors

Ramsay Hall

Legal Director