How best to approach an HSE investigation Practical guidance Natalie Puce Solicitor, BLM Manchester 24 September 2009 Birmingham Cardiff Leeds Liverpool London Manchester Southampton Stockton-on-Tees
General background The HSE was recently revised and launched. The current HSE Chair is Judith Hackitt. There is a vast amount of available information on the HSE website and, from this, you can see that the HSE s mission is now The prevention of death, injury and ill health to those at work and those affected by work activities. Resetting the direction The Health and Safety at Work Etc Act 1974 established the simple yet enduring principle that those who create risk are best placed to manage it. The Act led to the setting up of the Health and Safety Commission (HSC) and the Health and Safety Executive (HSE) and established HSE and local authorities as joint enforcers of health and safety law. On 1 April 2008 HSC and HSE merged to form a single entity known as the Health and Safety Executive (HSE). This is the national regulatory body responsible for promoting the cause of better health and safety at work within the UK. It continues to work closely with local authorities. Safety record Great Britain has one of the best health and safety records in the world but things have plateaued out over the last five years. Provisional figures for 2007/08 show: i) 229 workers killed. ii) 136,771 employees seriously injured at their place of work. iii) 2.1 million people suffered from an illness reputedly caused or made worse by their current or past work. This has inevitably had a major impact on the economy. Some 34,000,000 working days lost in 2007/08 due to accidents at work and work related ill health at a cost of 20 billion. HSE s role HSE provides strategic direction and leads to the health and safety system as a whole. In addition to inspection, investigation and enforcement, its key activities include research, introducing new or revised regulations and codes of practice, alerting duty holders to new and emerging risks as they are identified, providing information and advice and promoting training. Investigations and securing justice HSE and local authorities are independent regulators. Working in partnership, their primary focus is to assist duty holders in preventing work related accidents and ill health. This is generally achieved through inspections and a range of pro-active measures including stakeholder engagement, communications programmes and the provision of information and advice. Investigating complaints, accidents and ill health is also an important lever for improving health and safety standards. In particular, the investigation of incidents is crucial to help determine the causes, learn and share lessons and ensure that necessary measures are in place to prevent recurrence. Investigation also provides the basis for enforcement action to secure justice. Where appropriate, the HSE or the relevant local authority will rigorously seek justice against those who put others at risk and, in particular, where there is a deliberate flouting of the law. How best to approach an HSE investigation - practical guidelines_nup_10/09 1
In short, therefore, the HSE have a range of roles which can be best summed up as: Enforcer (where rules are ignored or blatantly disregarded). Help, advice, guidance (where people are trying to do the right thing). Securing justice and providing support for workers who are victims of poor health and safety practices. Working with businesses to improve. So going back to the title of this talk, what role is the inspector visiting your premises adopting and why? Some reasons could be: The inspector has not been to your premises for some time and he wants a general look round. HSE is interested in a particular industry, process or activity and the inspector has been charged with a visit. Someone has complained about the conditions in your premises. You have had an accident or incident and the inspector wants to investigate. The inspector is following up on a previous visit. You have asked the inspector to visit because you need some advice or help. So, essentially, this breaks down to either an inspection or an investigation does it matter? Furthermore, what is the difference? In many ways there is little difference between the two. In each case there will be: Observation. Questions and answers (you, your employees, your contractors). Checking document. Looking at physical evidence. However, warning lights should be sounding if some of the following occur: Taking written statements Taking photographs Obtaining copies of documents Taking physical possession of evidence for which you will need a receipt Taking samples Private consultations with colleagues Silence Visits by specialist inspectors. So what are the inspectors powers under HSWA? Powers are given to HSE inspectors under Section 20 and Section 25 HSWA. The inspectors powers are as follows: i) Power of entry Section 20 (2) (a) (c) ii) Power to seize Section 20 (2) (i) iii) Power to interview Section 20 (2) (j) iv) Power to require production and inspection of documents Section 20 (2) (k) v) Power to require assistance Section 20 (2) (l) vi) General power Section 20 (2) (m) vii) Power to deal with cause of imminent danger Section 25. How best to approach an HSE investigation - practical guidelines_nup_10/09 2
The inspector has the power to enter premises at any reasonable time or at any time if, in his opinion, the situation is or may be dangerous. The inspector also has the power to take a police constable if he believes he will be obstructed in his duty. Furthermore, the inspector has the right to take with him any person or equipment he feels is required. On entering premises an inspector has the power to: a) Undertake examination and investigation as is necessary b) Direct that the premises are left undisturbed for the purposes of his investigation c) Take measurements, photographs and make necessary recordings d) Take samples e) Require substances or articles that in his opinion have caused or are likely to cause danger to health and safety to be dismantled or subjected to testing. The person who has responsibility for the premises is entitled to be present at the testing unless it is felt his presence will be prejudicial. It is an offence for a person to contravene any requirement imposed under Section 20 or Section 25. Furthermore, where a person prevents or attempts to prevent any other person from appearing before an inspector under his Section 20 powers then again they are guilty of an offence. It goes without saying that it is also an offence for a person to make a statement he knows to be false or recklessly to make a statement which is false where the statement is made in compliance with Section 20. Moreover, any person making an intentionally false entry in any register, book, notice or other document required by statute to be kept, served or given commits an offence. In short, the HSE inspector has enormous powers. Avoiding prosecution To stand the best chance you can of avoiding a prosecution (or being able to build up a defence / strong mitigation if prosecuted) our advice has to be that you ensure that you: Manage and control the investigation process as far as you can. Take specialist legal advice as soon as possible. Appoint an independent person to conduct the investigation (ie your own internal investigation rather than an HSE one). Consider the use of a statement instead of an interview under caution. Ensure employees do not speak on behalf of the company (ie to the HSE). Get all your documents in order. So, how to approach the HSE visit? If you know the visit is happening or is likely to happen: Prepare for it Keep notes made at the visit or shortly after (a detailed timeline of dates and events is well worthwhile) In relation to accidents or incidents i) Investigate them ii) Understand how they have happened iii) Put in containment measures to prevent them from happening again before the inspector comes (but at the same time be clear about what you intend to do long term) iv) Where the evidence is unclear or not credible say so v) Where someone has not stuck to rules say so How best to approach an HSE investigation - practical guidelines_nup_10/09 3
vi) If there is doubt say so. Work place situation. i) Satisfy yourself that the area is well ordered and clean. ii) Make sure that you inspect the area yourself to identify any possible areas of risk or that have sub-standard controls. In terms of your general approach, try to remember the following. If the visit is a surprise: Do not leave the inspector waiting in reception (as indicated above, they have extensive powers of entry which they will use with or without you if they think they are being stalled). Offer a cup of tea or coffee (at least it gives you some time to try to collect your thoughts). Establish the reason for the visit (if it is a general look round ask directly has a complaint been made? Judge the reaction). Keep the inspector safe at all times. Co-operate, be open and honest (though don t offer yourself up on a plate!) Stop digging if you are in a hole. Take stock react. Take the inspector s advice and commit to action if you can. If there is clear risk, take the action first (it is your workplace set the standard). Depending on what has happened prior to the visit, there may be a great deal of anxiety and tension in the air. Some HSE inspectors are better than others in recognising and dealing with this. However hard it may be, keep your cool at all times and do not become obstructive. You do not want to rub the HSE inspector up unnecessarily because once he has started looking at your organisation you may find that he starts taking an interest in things on a much wider level. Turning to specific situations: Accident investigations HSE do not investigate all accidents though HSE and police investigate all fatal accidents at work. HSE currently investigate less than about 5% of reported accidents. You can, to an extent, predict the accidents that they may investigate (eg machinery accidents, falls from height, serious injuries, dangerous occurrences, electrical incidents and accidents). If you think HSE may investigate it is a good idea to take advice from your safety professionals and, if appropriate, from your lawyers early on. Investigate your own incidents (so that you understand where the risk was and reduce or remove it. Also do not leave a quantum of risk for the inspector to focus on). Statements There are various types of statement which may be obtained by the HSE during an investigation: i) Voluntary statement under Section 9 of the Criminal Justice Act 1967. This is the most common type of statement. There is no obligation on the person to give a Section 9 statement, but there again if an individual refuses then the HSE may exercise its powers under Section 20 HSWA. How best to approach an HSE investigation - practical guidelines_nup_10/09 4
ii) iii) Section 20 HSWA interview of an individual who an inspector has reasonable cause to believe to be able to give information relevant to his investigation or examination it is an offence to refuse to answer an inspector s questions. However, it must be remembered that any answers given cannot be used against the person giving them (or their spouse) in any proceedings. The interview should be a question and answer session. PACE interview under caution. Some general comments about statements in terms of an investigation: If statements are being taken this is not good news. Statements are a written record of the evidence that a person can give. There are rules that prevent you perverting the course of justice by influencing statements and the like. For that reason, it is essential to try to: a) Make as detailed a record as possible of who has given statements. b) Ask the inspector if there was anything significant mentioned and what that was. (It is frankly unlikely that you will be allowed to sit in on the statement taking session). c) Obtain a copy of the statement. (You cannot have a copy of the statement but the employee can ask for one). If a statement has been taken then it is highly likely that you are entering the legal arena and need to speak to your lawyer. Some specifics in relation to voluntary statements under section 9 CJA You will frequently be given details of individuals who the HSE inspector wishes to interview for the purpose of obtaining statements and this gives you an opportunity to make certain preparations: Interview the individuals in question to ascertain what they can say about the incident (making it very clear that you are not seeking to influence their views in any way). You can explain to the individual in question what the purpose and procedure will be under Section 9. In other words, you can explain that there is no obligation to provide a statement and that it is purely voluntary. However, having said that, the HSE may exercise its powers under Section 20 HSWA to force that individual to make a statement. Provide guidance to any interviewees, not just about the purpose of the interview, what form it will take, but also practical guidance about being very clear they understand the question they are being asked and making it clear that they should only provide information which they themselves have. In other words, they should not express opinions or pass on second hand information. It should also be made clear that they do not have authority to speak on behalf of the company and are simply giving evidence in their individual capacity. Finally, they should be advised that they are within their rights to say that they want someone else to be present, be it union representative, solicitor or whatever. However, there is Law Society guidance from the Rules and Ethics Committee of the Regulation Board dealing with whether or not a solicitor acting for the company can attend the HSE s interviews of employees. Although what they say is not mandatory they do say that they will regard it as part of their regulatory function, so any solicitor who goes against this guidance may face sanctions. How best to approach an HSE investigation - practical guidelines_nup_10/09 5
Acting for employer only The guidance says that it is difficult to justify the employers solicitors accompanying the employees to an interview as the solicitor will have obligations of disclosure to the employer and this may be detrimental to the employee. There are also public interest arguments to say that the presence of the employers solicitor may prevent the employee from fully disclosing facts about the incident. It is therefore generally inappropriate for the employers solicitors to attend. If the employers solicitor meets with individuals who are going to be interviewed by the HSE then it is permissible to provide information to the employee about the interview process and the employees rights. However, the solicitor must make sure that the employee who is going to be interviewed understands that the solicitor is not acting for them, cannot advise them and that the solicitor s duty is to the employer only. In addition, the solicitor must make it clear that anything the employee says may be relayed to the employer. Acting for employer and employee If the solicitor has considered the conflict position carefully and is acting for both employer and employee, then the solicitor must think again about this in the light of the interview and any information that may come to light during the interview. In practice, this involves the potentially difficult issues of reconciling the duty of disclosure to the employer against the duty of confidentiality to the employee. If, however, the employee s interests are co-incident to the employer s (eg if it is a director) then no real issues are likely. However, it is vital to keep the conflict question under review. Acting for employee only There is no issue here. Even if the employer is funding the representation, the solicitor can provide information to the employer if he requests but only once he has been able to clear it with the employee and has confirmed that, by passing on such information, it will not adversely affect the employee s interests. In short, if the HSE are taking Section 9 statements it is highly inadvisable for the company s lawyer to try to force his presence at the interview. The current Law Society guidance is only mandatory but if any solicitor goes against that guidance then he is likely to be criticised. Practical tips The best advice we can give is: Interview all the employees that the HSE propose to interview. Obtain a signed witness statement from each employee before they see the HSE. If seen by the company s solicitors, it is essential to explain to the employee that they are not acting for them, we cannot advise them and our duty is to the employer only. Furthermore, they must understand that anything they say may be relayed to the employer. Find out from the HSE in what capacity they are interviewing each employee and confirm in respect of each whether they are being interviewed as a witness or suspect. If the employee is being interviewed as a witness it is unlikely they will need legal representation. Ideally, the employee will consent to a member of the company sitting in during the interview for support purposes and also to take detailed notes. This way, you How best to approach an HSE investigation - practical guidelines_nup_10/09 6
are able to check whether they have said anything different to the HSE to what they have said in connection with the internal investigation. If the employee is being considered as a suspect, speak to the employer to try and arrange separate legal representation. That solicitor may then disclose the statement following the interview if it is in the employee s interests and the employee consents. In both circumstances, the employee should ask the HSE inspector for a copy of the statement at the end of the interview (though in practice the HSE tend to refuse as they know that often it goes straight to the employer). Interview under s20 HSWA compulsory statement This is generally to be regarded as bad news. Remember that any answer given is not admissible in evidence against that person (or their spouse) in any proceedings. Seek legal advice. Right to be accompanied. Entitled to request a copy of the statement. PACE Interviews It is important to understand that PACE interviews are entirely voluntary unless the person is under arrest. At present most health and safety offences are not arrestable offences and therefore attendance at almost all PACE interviews conducted by HSE is entirely voluntary. The rules relating to interviews under caution are contained in the PACE Code of Practice C and in section 34 of the Criminal Justice and Public Order Act 1994 (CJPOA). These rules are extremely extensive and far too long to repeat in this paper, but the general rule of thumb is that you should be extremely cautious if invited to attend for a PACE interview. Essential points to remember are: i) A PACE interview is conducted after the appropriate caution has been given. ii) Whilst attendance at a PACE interview is usually voluntary, once a person has decided to attend the interview and has been cautioned a failure to mention any fact which is later relied on in the Company s or indeed their own defence, then the court (and jury) may draw such adverse inference as it thinks fit when deciding the person s guilt. iii) In view of the above, it is important to establish whether the person questioned is being questioned because they are a potential target of an individual prosecution, whether they are being questioned as a representative of the Company or questioned as a potential witness. iv) As an alternative, the request may well be declined on the basis that a written statement covering the issues which the HSE are interested in will be supplied in lieu. Assuming that is done and the statement comprehensively covers the relevant issues highlighted by the HSE, then no adverse inference will be drawn by the court. By doing this, you do retain much greater control of the process and avoid exposing yourself to a line of questioning that you cannot comfortably deal with. How best to approach an HSE investigation - practical guidelines_nup_10/09 7
v) Remember that while it is fair and proper for the suspect to be provided with an opportunity to answer the allegations and supply their account, the interview is primarily an opportunity for the HSE to obtain evidence on which to base any subsequent prosecution. The following factors should be considered when making a decision: i) Whether a full and frank approach may benefit the company and assist the HSE in identifying the real offender ii) The company s ongoing relationship with the HSE iii) Whether sufficient disclosure has been received from the HSE indicating the suspected offences iv) Whether there has been undue delay by the HSE in investigating the matter which now causes difficulty in answering questions v) Whether there is an appropriate person who can be the authorised representative of the company vi) Whether the company has anything to add that the HSE does not already know, and vii) Whether there is a desire to (and ability to) put forward strong mitigation at an early stage. Each case is fact sensitive and there is no one rule that applies in every case. Enforcement Enforcement authorities have a range of tools at their disposal in order to seek compliance with the law, which should be proportionate to any suspected offence. These can range from the provision of information and advice through to a prosecution. However, in between there are Improvement and Prohibition notices. These are formal legal notices which may be used in conjunction with a prosecution or, alternatively, on their own. The best way to avoid them is to take the necessary action yourself before the inspector makes you take it (it is your risk and you should be the one who is in control. If not then you have failed). Improvement notice requires a breach so take away the breach. Prohibition notice requires a risk of serious personal injury again, take away the risk. Take enforcement/improvement notices seriously. Comply with them and document and demonstrate this. Remember that you can apply for extensions before the notice expires. Furthermore, you can seek help and guidance if you are unsure. However, it will be too late for that after the notice has expired. Alternatively a simple caution may be issued but remember that this signifies a prosecution could properly be brought and therefore in the event of any future breach it may influence the How best to approach an HSE investigation - practical guidelines_nup_10/09 8
decision as to whether or not a prosecution should be brought and furthermore it may be referred to the court. Prosecution The HSE are Crown prosecutors and are governed by the Crown Prosecution Guide. Any prosecution must: a) Have a reasonable possibility of succeeding and b) be in the public interest. If you feel that you are likely to be prosecuted, make your case against prosecution before the prosecution has started through your lawyer. A good time to do this is when an invitation is made to attend a PACE interview. Through either or both of a letter from your lawyer and a witness statement suitable representations can be made. Relevant points to consider are: i) Are the witnesses and the evidence credible? ii) Do you have evidence which casts doubt on the HSE position and could throw the outcome into doubt? Before passing sentence the court will take into account, by way of mitigating features, various factors including the way in which the defendant company has behaved in relation to the HSE and its investigation. Therefore, it is sensible to: i) Co-operate with the investigation. ii) Take prompt action to address any deficiencies after an incident. iii) Conduct a detailed and thorough investigation in the aftermath of the accident. iv) Demonstrate that there is no element of putting profit before safety. v) Not only express regret, but also behave in a compassionate and caring manner towards any individual who may have been injured providing them with suitable support. vi) Demonstrate a commitment to maintaining health and safety standards. vii) If appropriate, enter an early guilty plea. Conclusions Your relationship with the HSE can be challenging and rewarding. In large measure, you dictate the nature of that relationship by your systems, performance and approach. You own the risks, you must manage them to a sound standard. Take control of your organisation. In the event of an HSE investigation a confrontational attitude towards the HSE reaps no benefits. You may find that this is an extremely long and drawn out process. Be patient and be cautious about making a complaint (though there are defined complaints procedures if you really feel that you need to go down this avenue). How best to approach an HSE investigation - practical guidelines_nup_10/09 9
Ó Berrymans Lace Mawer LLP 2009 Disclaimer This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to clients of Berrymans Lace Mawer. Specialist legal advice should always be sought in any particular case. Information is correct at the time of release. O:\EVENTS\SEMINARS 2009\H&S WORKSHOPS 09\MANCHESTER WORKSHOP_6 OCTOBER\PAPERS\HOW BEST TO APPROACH AN HSE INVESTIGATION_N PUCE MANCHESTER.DOC How best to approach an HSE investigation - practical guidelines_nup_10/09 10