Episode 2: What do I do if...I have to manage an accident in the work place? - Part 2

00:00:05 David Lee, Host

Hello and welcome to Podcasts by Brodies my name is David Lee, and in this series we take an in depth look at some common and not so common questions and scenarios Brodies' lawyers have faced over the years.

In each episode we talked to Brodies experts to hear their insights and experiences that allow them to take the right approach when they're asked the deceptively simple question, “what do I do if...?”

The focus in this part of the series is on health and safety and land and rural business, and in this episode we hear from two health and safety experts who are both senior associates with Brodies, Victoria Anderson and Ramsay Hall.

They address a question no one wants to have to ask, but which everyone must be prepared for, 'What do I do if… I need to manage an accident at work?'

This is part two of the podcast on dealing with accidents at work. If you haven't heard part one already, have a listen, there are some great tips.

So let's step back with a quick summary of episode one. The accident has happened, your preparation hopefully has been really good. You've responded appropriately, you're thinking carefully about evidence, you've got someone who's taking overall responsibility for the accident response. There's a lot on your plate, but there's even more to think about as a lot of unknown faces arrive in the reception area.

So Victoria, who are the authorities who might attend who might turn up at your place of work following an accident?

00:01:38 Victoria Anderson, Senior Associate, Brodies LLP

So in terms of the workplace, most people are familiar with the health and safety executive, which is often abbreviated to the HSE, and they are the primary regulator for health and safety at work in the United Kingdom, but they aren't the only regulator.

I suppose there's two things to focus on here.

The first thing is, what has been the result of your accident? Because unfortunately, if the result has been a fatality, then in addition to your health and safety regulator, you will also be visited by the police. They have a joint protocol for dealing with workplace deaths, but whether or not the HSE is going to attend at your premises depends on which business sector you operate in. So the health and safety executive are the principal regulator for health and safety, but they're not the only one. You may alternatively be visited by health and safety inspectors from your local authority, and depending on which council that is, they will either refer to themselves as health and safety inspectors or environmental health inspectors, but they have broadly the same remit.

If you operate in the marine and maritime sector, you may be visited by the Marine and Coast Guard Agency, and in addition to that, you might also be in visited by the Marine Accident Investigation branch, who have a similar function in terms of safety investigations in maritime incidents.

So for the purposes of this podcast we're going to focus on the HSE because that's the regulator who affects most business sectors but, not all of them.

00:03:23 David Lee, Host

OK, and Ramsay over to you. Can you just give us a bit of an overview of what powers those authorities have?

00:03:31Ramsay Hall, Senior Associate, Brodies LLP

So different regulators have different powers and Victoria helpfully talked us through who the key regulators are. It's important just to emphasise the point Victoria made, which is that if it's a joint investigation and in the event of a fatality, you will first want to understand who's leading the investigation, because the lead regulator is the one whose powers will apply.

Generally speaking though, the powers of investigation includes power to search an area, seize items, conduct interviews, and charge both individuals and companies with criminal offenses. And in our experience, the idea of regulators conducting interviews is the key stage in the investigation process that causes a lot of anxiety for businesses and their staff, and is one through which you would want to have legal support and input.

More generally, I suppose if you're facing an investigation, you'll want to get legal advice on the powers of the regulator as soon as the investigation commences. The benefit of that is that you can review how the regulators are conducting their investigation against those powers, and if they exceed the powers during the course of the investigation, you can take action with your legal team to address the concern.

00:04:50 David Lee, Host

OK and Ramsay, before I move back to Victoria, you mentioned that point about anxiety there. It must be quite natural to panic in that situation to be anxious when the regulators come knocking?

What's your advice to businesses and organisations where the regulator does arrive , to stay calm and deal with it in a rational way? What do you say to them?

00:05:14 Ramsay Hall, Senior Associate, Brodies LLP

So I say two things. I say that generally speaking you should cooperate with the regulated regulators, but in a controlled manner. And chiming with that my second point is that you want to create some time and some space for the manner of the engagement.

One of the ways that you do that is you engage with legal support to be the direct point of contact for the regulators, because that creates a degree of space between the organisation, the individuals under investigation and the regulators.

00:05:50 David Lee, Host

OK and Victoria, what are the specific areas that that make businesses worry about the HSE coming calling? What are the specific powers of the HSE that that really worry businesses and particularly can you touch on FFIs or fees for intervention?

00:06:10 Victoria Anderson, Senior Associate, Brodies LLP

From the regulator in this context, I'm talking about the health and safety executive.

The health and safety executive have what we call enforcement powers so they can come into your premises, they can conduct an investigation and subject to their findings of that investigation, they can take action, referred to as enforcement action.

Now that broadly falls under two headings, the issuing of a legal notice, either an improvement notice or a prohibition notice.

Succinctly, an improvement notice requires a business operation to improve how it is doing something, and the reason it needs to be improved is because the regulator says that what is currently being done is not meeting the legal standard required of the business.

A prohibition notice, which is often deemed to be the more serious of the two, is a notice which as it says on the tin, prohibits a business from undertaking a particular operation. That's for the same reason. It's because the inspectors deem that the way that it is currently being done is not meeting the legal standard of safety, so it's to put an immediate halt on a specific activity.

Now we see this most commonly in sites where your people might be working with machinery that's not sufficiently guarded. So if you imagine tables or a circular saw which has had the guard removed, the HSE inspector will issue a prohibition notice, preventing the company from using that saw until such time as action has been taken to make its operation safe and make the legal standard upon it.

Enforcement notices are an interesting beast for two reasons. I think historically they have always been something which companies have taken as being a bit of a slap on the wrist and perhaps more of an administrative issue than anything else. But what we have seen certainly over the last eight to ten years is the impact that these notices can have on procurement opportunities for businesses. So if you have received a notice which you have not appealed - and I'll come on to mention that - that notice appears on a public register. And in the event of tendering for new work, one of the first questions often asked in procurement exercises is whether your business has been the subject of any enforcement action or other regulatory investigation by the health and safety regulators. And subject to the wording of the question, of course you have to declare that there and then.

There is a right of appeal against both types of notice, and it's always our advice to clients that if you receive a notice, seek immediate legal advice. The reason for that is there is a right of appeal, but it is subject to a very strictly enforced time limit, and if you miss that time limit, you may lose your right of appeal.

Often, or in fact always, these notices are issued based on the subjective opinion of the individual inspector and with the best will in the world, they don't always get it right. So your business should not simply accept an enforcement notice because there are potential consequences for the business in doing so. We would always recommend that you seek legal advice on whether or not the notice has been competently issued and whether or not substantive basis it actually would stand.

The other side of enforcement notice to touch on as you asked about David, is the fee for intervention invoices. Now this is a rather surprising beast that came in to play in about 2012 where the health and safety executive has the ability to issue invoices to any company for its inspector's time in carrying out an investigation. So if an inspector considers that they have found a material breach of health and safety law, then they can charge you for the pleasure of investigating your business.

And currently that is an hourly rate of £163 per hour, and there are various rules around what is chargeable, what is not chargeable. There is also, an appeals process connected to the invoices which are issued to businesses.

We often say to clients, if you receive a fee for intervention invoice and either you are surprised at the level that is being charged, or you don't think it's been fairly issued, then again, seek legal advice, there is an appeals process for that.

I suppose one of the things that we need to highlight in terms of the legal impact of these notices and moving back slightly, probably more to the enforcement notices, is that if you fail to challenge an enforcement notice, an improvement or a prohibition notice, that will be taken as a tacit admission of guilt in the event of any subsequent prosecution because you haven't challenged it, you haven't said, “no, we don't accept that we are not guilty of that breach of health and safety law.”

So the enforcement action is as important to handle correctly and with the support of relevant legal advice, as any subsequent prosecution or further action may be.

00:11:53 David Lee, Host

OK, thanks very much for that Victoria. Ramsay, Victoria touched on a few of these issues here, but why is it so important to have good legal support throughout every step of any kind of regulatory investigation.

00:12:08 Ramsay Hall, Senior Associate, Brodies LLP

My take on it is that having legal support on board sends a message to the regulator that you're a responsible business which is taking the investigation seriously.

We know from experience the HSE expect organisations to have legal support through the course of investigations, particularly following those serious incidents like fatalities.

Second, and as I covered earlier, having legal support on board at an early stage can help guide the direction of the regulatory investigation and where necessary, create an option of challenging the exercise of the regulators powers.

A legal benefit of having lawyers on board is that anything that the lawyers do for the business will attract legal privilege. Now what that means is the business can't be ordered to disclose privileged material, and I know this point was covered in the first episode, so would certainly encourage people to listen to that first episode if you haven't already done so.

Internally, having legal support on board sends a positive message to your staff. I mentioned before David that can be quite distressing to face the prospect of interviews, and if you can send a message to your staff that they have legal support to guide them through that process, it can help maintain morale through what is quite a difficult process.

And I suppose finally, in the event that a regulator like HSE decides to take further action, including reporting matters to the Scottish prosecution body called the Scottish Crown, then the Crown will note the existence of legal support for the business and that is then a platform for the Crown to engage in discussions around potential resolution. Whereas if there's no legal support at that stage, the likelihood is that the Crown will go straight to raising a prosecution.

00:14:13 David Lee, Host

OK, and we'll come back to those different avenues - prosecution and others - later Ramsay. But let's look at one other kind of thorny challenge, Victoria.

Not only do the regulators turn up in reception, but some journalists turn up as well - there's media interest. Let's say it has been a fatality, a serious accident of some kind. How should a business go about managing kind of press interest following an accident or incident at work?

00:14:43 Victoria Anderson, Senior Associate, Brodies LLP

There's two avenues to this. David. There's the internal message that needs to be communicated to your workforce, and there's the external, that would be any communication with the press itself.

I think it's always incredibly difficult for any business to know what is the right thing to do. Should we speak to the press? Should we say anything? And there are many clients say to us, “but we don't have anything to hide” or “it feels wrong not saying something,” you know.

If in the case of fatality, they've lost an employee and a valued member of staff, the advice that we would tend to give clients in that circumstance is to engage with us principally so that we can discuss with the business in the specific circumstances whether it's likely to be appropriate. And when I say appropriate, I'm not talking about lawyers coming along and saying, “oh, you know, say nothing to say.” What we're talking about is there is a risk if there is an ongoing investigation by a regulator, making comments to the press, either at an official corporate level or on an individual basis. If you say the wrong thing, you could inadvertently impact the ongoing regulatory investigation and subsequent proceedings which may arise as a result, and nobody wants that to happen. So it's about trying to maintain control and not jeopardising the official processes that have to follow these incidents in terms of the internal messaging.

Often staff members can be approached as they are leaving the place of work themselves. Often people don't appreciate that the person who might just walk up to them in the street is in fact a journalist. And they might be asked an awful question and they respond without thinking.

So it's important to actually address it with your staff and to explain to them that there is a possibility they could be approached, to be alert to that possibility, but also given the ongoing investigation to remind them that it's inappropriate for any comments to be made and that the company may take its own view in relation to issuing a statement now corporate level. Many companies may work with PR agencies to assist them in this type of situation, which is absolutely fine if that's their preferred way to do it. But again, we would stress the importance of ensuring that your PR agency are in touch with your legal team, just to ensure that what is being said is factually correct at the time and also that it's not straying across the realms of what's appropriate, given the ongoing investigation.

00:17:25 David Lee, Host

OK, thanks very much Victoria. Ramsay, we'll just we'll just double back to a regulatory investigation and what can follow from that?

What are the options if the regulator decides there is something to see here?

00:17:41 Ramsay Hall, Senior Associate, Brodies LLP

So let's be optimistic David and let's start with the positive option.

The best-case scenario is that the matter concludes with no further action. So it's brought to an end after the investigation, and that's almost the rubber stamp given by the regulator of the business, including in relation to its approach throughout the investigation.

More often, however, the regulator will take further action and that further action tends to be submitting a report to the Scottish Crown, the prosecution body, and in turn the Scottish Crown will take a decision on whether to raise a criminal prosecution against, either individuals associated with the business, the business itself, or both. That would be the start of a formal Criminal Court process, which of course can be upsetting, can take a long time, and can result in penalties being imposed in the event of a finding of guilt.

To continue with the doom and gloom theme, just for a second David. In addition to criminal prosecutions, there's also the prospect of civil claims being raised seeking damages against the business. So to give you an example, an injured employee could raise a court action against their employer seeking damages for failing to keep them safe in their work. Now that would be an entirely separate process to the criminal prosecution that I mentioned.

Finally, in the event of a fatality, a fatal accident inquiry can be conducted, and we call those FAI's in the legal world. Again, that's entirely separate process to prosecutions.

The purpose of an FAI is to investigate the reasons for the incident. Evidence is heard before a Sheriff who then issues determinations on the cause of the incident, together with recommended improvements to avoid a repeat. That there are occasions where the Crown will proceed only with an FAI and not a criminal prosecution but the Crown can, and has, in the past brought prosecutions as well as bringing proceedings for FAIs.

So the consequences can be quite serious. All the more reason I would say to get to treat it seriously at the outset, to get legal support  and to seek the guidance of your legal team throughout the investigation.

00:20:09 David Lee, Host

OK, thanks Ramsay, and Victoria, I'm just going to come back to you. There's lots of big issues here across these two episodes. It's a stressful, anxious time for businesses, so a few final words from you of overarching advice to businesses who do find themselves in the situation of having a potentially quite serious incident in the work.

00:20:30 Victoria Anderson, Senior Associate, Brodies LLP

I think it comes down to doing what you can as a business to prepare, whether that's having an emergency response protocol on a piece of paper for your staff to follow, having identified ahead of time the correct person and or department to lead the investigation internally, and primarily as we've said throughout these two episodes, to ensure that you seek legal advice.

As Ramsay said, the regulators expect nowadays that businesses will have legal advice. It is not seen as a negative thing, and in fact quite often both the regulator and if they become involved, the prosecution service quite like to have a lawyer there, because sometimes it makes things run more smoothly.

And I suppose, one final plug at the end, for any of the information in relation to the different types of regulators that we were mentioning earlier, and advice on carrying out investigations anybody interested could download our free app which is Health and Safety by Brodies, details of which are on our website.

00:21:47 David Lee, Host

OK, thank you very much to Victoria Anderson and to Ramsay Hall for the great advice and insights there and remember to listen to episode one of this podcast if you've not done so yet.

Thank you very much for listening to Podcasts by Brodies where some of the country's leading lawyers and guests share their Enlightened Thinking about the issues and developments having an impact on the legal sector, and what that might mean for organisations, businesses, and individuals across the various sectors of the UK economy and sometimes wider society.

To hear more please subscribe to Podcasts by Brodies on all of your main podcast platforms and for more information and insights, please visit www.brodies.com.