www.brodies.com ACCIDENT OR NEAR MISS IN THE WORKPLACE WHAT SHOULD BUSINESSES DO?

www.brodies.com ACCIDENT OR NEAR MISS IN THE WORKPLACE WHAT SHOULD BUSINESSES DO?

OVERVIEW Do you know what to do if there is an accident or near miss in the workplace and the Health & Safety Executive (HSE), the police or other regulator decides to investigate? Do you know how matters are likely to progress and what the outcome might be? Dealing with several different investigating authorities following a health & safety incident can be a daunting task. Although the investigating officers will be trying to establish how and why an incident occurred, it is important to remember that possible breaches of health & safety or environmental law are also being investigated. Businesses need to co-operate with the relevant investigating authority whilst at the same time taking all available legal steps to protect their position. Getting this delicate balance wrong can seriously affect the outcome of an investigation. This guide provides an introduction to health & safety law enforcement and procedure in Scotland. It includes a concise summary of: the roles of regulators (such as the HSE), the police and the Crown and Procurator Fiscal Service (COPFS) in health & safety law enforcement the actions which might be taken (including enforcement notices, prosecutions, fatal accident inquiries) and how to deal with those the possible outcomes Our expert Health & Safety Team assists clients facing investigation by all of the investigating authorities in Scotland. If we can provide you with any further information, please do not hesitate to contact us: Key contacts Elena Fry PARTNER, HEAD OF HEALTH & SAFETY 0141 245 6215 elena.fry@brodies.com Malcolm Mackay PARTNER, SOLICITOR ADVOCATE 01224 392 274 malcolm.mackay@brodies.com Duncan MacLean PARTNER 0131 656 0152 duncan.maclean@brodies.com

KEY PLAYERS HEALTH AND SAFETY EXECUTIVE (HSE) The HSE is one of the main enforcers of Health & Safety (H&S) legislation in Scotland. Its far-reaching powers include undertaking inspections of premises, serving enforcement notices on businesses, varying licences, investigating apparent H&S breaches and reporting to the Crown Office and Procurator Fiscal Service (COPFS) where prosecution may follow. LOCAL AUTHORITIES Scotland's 32 local authorities have an extensive role in the enforcement of H&S law. The Health and Safety (Enforcing Authority) Regulations 1998 set out the main activities which determine whether local authorities will be enforcing authorities for H&S law. These activities include retailing, hotel and catering premises and the consumer/leisure industries. Due to frequent overlap between the areas which are the responsibility of the HSE and those which are the responsibility of local authorities, the two work closely together. THE POLICE Policing in Scotland is provided by eight police forces. These all have a role in H&S enforcement in their respective areas of responsibility. In addition, the British Transport Police, the Ministry of Defence Police and the Civil Nuclear Constabulary also have a H&S role in respect of their particular jurisdictions. If a serious incident has occurred, police officers are often involved at the outset until such time it is determined that it is a matter which falls within the HSE or other regulatory authority's remit. However, the police will investigate and be involved throughout in cases which may involve the likelihood of a prosecution for corporate homicide. THE SCOTTISH ENVIRONMENTAL PROTECTION AGENCY (SEPA) SEPA is Scotland's environmental regulator. Its duties include the inspection of workplaces to ensure compliance with environmental law. In addition, it has the power to revoke licences and to report breaches to the COPFS. It works alongside the HSE regularly. THE MARINE ACCIDENT INVESTIGATION BRANCH (MAIB) The MAIB was established in 1989. It is responsible for investigating accidents in order to determine their circumstances and causes. The MAIB's objective is to avoid similar accidents occurring in the future. The MAIB investigation does not determine liability nor does it apportion blame. The MAIB s powers are contained in the Merchant Shipping Act 1995 and the Merchant Shipping (Accident Reporting and Investigation) Regulations 2005.

The MAIB will carry out an investigation following an accident at sea and issue a report which is public and may contain recommendations for improvements. The findings are not binding in respect of civil or criminal liability. THE MARITIME AND COASTGUARD AGENCY (MCA) The MCA is an agency of the Department for Transport and was established in 1998 following a merger of the Coastguard Agency and the Marine Safety Agency. The MCA is responsible for developing, promoting and enforcing marine safety and minimising pollution from ships. Its powers are contained in the Coastguard Act 1925, the Merchant Shipping Act 1995 and the Merchant Shipping and Maritime Security Act 1997. Following an accident, the MCA will carry out an investigation and may recommend a prosecution. It is also responsible for the certification of vessels and for issuing Merchant Shipping Notices (MSN), Marine Guidance Notes (MGN) and Marine Information Notes (MIN). THE CROWN OFFICE AND PROCURATOR FISCAL SERVICE (COPFS) The COPFS prosecutes criminal proceedings in Scotland. Whilst in England and Wales the HSE, local authorities and the Environment Agency (the environmental regulator for England and Wales) can bring prosecutions themselves, in Scotland the decision over whether to prosecute rests entirely with the COPFS. The COPFS has a separate H&S division made up of prosecutors specialising in this area. Crown Counsel prosecutes the most serious of crimes (such as corporate manslaughter) in the High Court of Justiciary. They also make decisions about Fatal Accident Inquiries. The Procurator Fiscal Service handles less serious crimes in the Sheriff Courts.

ACCIDENT REPORTS & INVESTIGATIONS Managing what happens following an accident is crucial for organisations. What steps should be taken very much depend on the circumstances of each case. In this section, we will look at three parts of the process: 1. Reporting the incident to authorities 2. Your accident investigation 3. The investigations of the authorities Reporting the Incident to Authorities The circumstances of an accident and the type of work being undertaken will determine which authorities will respond to an accident and carry out an investigation (for further details, see our Key Players section). What to Report Except for those subject to the Merchant Shipping regulations, employers are typically required to report certain incidents to the HSE. The requirements are contained in the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR). The types of incident which must be reported are: Deaths Major Injuries a definition is given in Schedule 1 of the Regulations. It includes, for example, specific types of fractures and electrocutions Other injuries the traditional requirement is to report 'three day injuries', which are not 'major' but which result in the injured person being away from work or unable to do their full range of their normal duties for more than three days. This will be extended to seven days in April 2012 Reportable diseases a definition is given in Schedule 3 of the Regulations. Examples include poisoning and dermatitis Reportable dangerous occurrences/near misses if something happens which does not result in a reportable injury, but which clearly could have done, then it must be reported

Contents of report Basic information is supplied to the HSE to allow it to assess the key facts and the initial response required. A RIDDOR report may lead the HSE to attend the site to carry out inspections and interviews. RIDDOR reports can be made online via the HSE s website. Marine & offshore Certain incidents must be reported to the Marine Accident Investigation Branch (MAIB). The rules are contained in the Merchant Shipping (Accident Reporting and Investigation) Regulations. The rules apply to incidents on most vessels. The onus to submit a report is not only on the Master of the vessel but also the ship s owner, unless he is satisfied the Master has already reported. The definition of 'accidents' in the 2005 Regulations extends to injuries and a number of other occurrences including damage caused by a ship, including pollution. Accidents should be reported to the MAIB s website or hotline. The content required by the MAIB in their Incident Report Form is more onerous than that required by the HSE under RIDDOR and includes: why you think the accident happened, whether any actions have been recommended by you or others as a result and whether any such action has been taken. It is important to carefully consider what goes into the Incident Report, applying the same principles as when completing your own accident reports. To protect your position, the content of the incident report should be factual and should not comment upon liability or fault. Insurers You may need to notify your insurers of an accident. It is likely to be a condition of your policy, and a failure to do so may result in them refusing to indemnify you. You should be aware that even if your insurance covers Health & Safety investigations, it is unlikely to cover the cost of any penalty following conviction. Given the potential negative impact on your reputation and the financial implications of a conviction for a health & safety offence, it is vital that you have confidence in your legal representative and your insurer should respect your wishes. You can instruct us in any health & safety matter. Your investigation There is an important and often overlooked distinction between recording and investigating accidents. This is particularly important because, in Scotland, accident reports are recoverable by Claimants and the authorities but investigation reports generally are not.

Accident recording Employers are required under RIDDOR to keep written records of the details of the accident. Most employers will keep an 'accident book' for this purpose. You are required to record: The date and time of the incident The name and occupation of the injured person together with the nature of the injury Where the accident occurred A brief description of the circumstances of the accident The method by which the accident was reported to the authorities There is no requirement to note down the reasons for the accident or to make any comment on liability. Accident reports should be factual. The accident report is often the most contemporaneous record of an accident and should be completed accurately. The person who completes the accident report should provide a short statement to record where the information came from when he/she completed the accident report. Accident reports are usually written soon after an accident and before detailed investigations have been carried out. So avoid commenting on fault as this may be inaccurate. Keep a record of names and contact details of any witnesses to the accident, particularly when they are not in your employment. Witness statements There is no legal obligation to take witness statements, although it is usually the best method of recording accurately the factual circumstances of the accident. It can be a grey area as to whether witness statements can be recovered by the authorities or by an injured party for the purpose of a personal injury claim so exercise caution when deciding to gather 'statements'. Statements taken by lawyers are not recoverable. Witness statements taken by the organisation are likely to be admissible as evidence in court proceedings but are not 'self proving' and the witness may still have to give evidence in court.

Accident Investigations It is important that you investigate the circumstances and cause of an accident, to understand the cause, identify lessons to be learnt and implement any changes with the aim of avoiding future occurrences. At the outset of an investigation it is important to be clear as to why the investigation is being carried out. Is it to ascertain the facts of the accident or because of potential legal proceedings? In order to protect your position and to preserve your right not to disclose the investigation report, it is important you make it clear, both in the document itself, and also to the investigation team that the investigation is being carried out in contemplation of future court proceedings. As above, any statements or other investigations necessary to determine the factual circumstances of the accident should be kept separate in the knowledge that they may require to be disclosed. Legal Advice It is advisable to seek legal advice following a major accident. Your lawyers can help you deal with any investigations by the authorities. They can also compile an investigation report and assist in keeping it privileged (that is, not recoverable). Marine & offshore It is particularly important for you to obtain legal advice and for investigations to be carried out as soon as possible following marine accidents. If an accident occurs on a vessel which is due to depart port shortly and which employs crew based overseas, it is vitally important that witness statements are prepared and any inspection undertaken straightaway. If not, the opportunity may never arise again. Investigations by the Authorities The circumstances of an accident will determine which authority takes charge of an investigation. The majority of land-based accidents and offshore accidents will be investigated by the Health & Safety Executive (HSE). Its powers are set out in the Health and Safety at Work etc Act 1974 (HSWA). HSE Officers have the authority to take statements and seize documents. They may also carry out inspections and measurements and may remove items for off site testing. The HSE will typically take statements from eye witnesses to the accident to consider the factual circumstances, but also from managers and directors who can speak to the organisation's Health & Safety policies and procedures. Interviews There are different types of interviews that the HSE can use as part of its investigations. These are voluntary witness statements, section 20 statements and statements under caution. It is important to take legal advice regarding the type of statement that should be given.

Voluntary witness statements: The HSE will not compel a person to give a statement if they consider it unnecessary for example, a member of the public who witnessed an incident. They will ask the witness to sign the statement. Section 20 statements: Section 20 of the HSWA gives the power to HSE Officers to require any person whom they have reasonable cause to believe will be able to provide information relevant to the investigation to answer questions and sign a declaration of truth. These are also known as compelled statements as the witness must answer all questions put to them. The answers given in a statement under section 20 cannot be used in evidence against the witness. Statements under caution: HSE officers will take statements under caution from persons whom they think may be prosecuted. This includes directors and other employees. Before giving the statement, the witness will be cautioned that what he says may be used against him. The interviewee does not have to answer any questions due to the right not to self incriminate. A verbatim note of the interview is drafted, which the interviewee is asked to sign. The statement is admissible in evidence. Legal Representation Securing legal representation and advice prior to and during the taking of a statement by an investigating authority protects the organisation and individuals. Depending on the circumstances, certain employees or directors will require separate legal representation. This is something we will advise you on should this matter arise. It is recommended that legal advice and representation is obtained prior to disclosure of documents to authorities. Some documents will be protected by privilege (and therefore not recoverable) and legal advice at an early stage can prevent unnecessary information being disclosed. HSE Report At the end of an investigation, the HSE will prepare a report with its findings, its conclusions as to the causes of the accident and how it could have been prevented. It may recommend prosecution of the organisation and/or certain directors and/or employees. You are entitled to a copy of the HSE s report, but not the HSE s recommendations to the Procurator Fiscal. The report can also be obtained by an injured party under a Freedom of Information Act request.

The Crown Office and Procurator Fiscal Service (COPFS) then decide whether to prosecute in the criminal courts. Marine The Marine Accident Investigation Branch (MAIB) Following an accident onboard a UK vessel, or any vessel in UK waters, the MAIB will carry out an investigation. The MAIB will typically interview the Master of the vessel(s) involved, eye witnesses and other witnesses as it thinks appropriate. Their interviews are not under caution. Once the MAIB has interviewed witness, it will issue a draft report. The report may contain recommendations for improvements in the system of work. There is then a period of 28 days for interested parties to make representations on the draft report, which the MAIB is required to take into account before the final report is published. The MAIB is not involved in a decision as to whether there should be a prosecution and its reports are not determinative of liability in either civil nor criminal court proceedings. Nevertheless, as the MAIB s reports are made public, which can have important reputational and financial implications, it is important that legal advice is obtained for the MAIB interviews and the representations for the draft report. The Maritime and Coastguard Agency (MCA) The MCA [this should be a link to key players - MCA] will also carry out an investigation following the accident and it is not uncommon for there to be separate MAIB and MCA interviews. The MCA will not issue a public report but can recommend whether there will be a prosecution. It is therefore important that legal representation is obtained for the MCA interviews. The MCA can invite persons for interviews under caution where there is the potential for them to be prosecuted. The statements in those interviews are inadmissible.

ACTION BY AUTHORITIES Enforcement Enforcement is the method by which the key players encourage or order compliance with legislation. The enforcement action taken will be determined following investigation and the key players will often work together when considering what action to take. The most serious incidents may also give rise to criminal prosecution. Health & Safety Executive (HSE) In Scotland, the HSE does not prosecute criminal offences (unlike England and Wales). This is done by the Crown Office and Procurator Fiscal Service. Responsibility for the enforcement of health & safety law in Scotland principally rests with the HSE The HSE is responsible for enforcement in the following areas: Factories Farms Building sites Hospitals Nuclear installations Schools/colleges In circumstances where the HSE believes there has been or is likely to be a breach of health & safety law, it may serve: an Improvement Notice a Prohibition Notice An Improvement Notice may be issued in circumstances where the HSE holds there has been a breach of law and it is likely to occur again. An Improvement Notice allows an organisation no less than 21 days to remedy the breach. The HSE will usually discuss with the organisation ways in which they could achieve compliance. On some occasions, the HSE may find that a breach is ongoing and presents an immediate risk of personal injury. A Prohibition Notice may be issued in those circumstances and it orders the activity to stop until the organisation has taken remedial action to the satisfaction of the HSE. In certain situations, the HSE may consider it appropriate to serve both types of Notice. Failure to comply with a Notice may result in prosecution.

It is possible to appeal against the service of a Notice. An appeal must be lodged with the Employment Tribunal within 21 days of the service of the Notice. An Improvement Notice is suspended pending the appeal, however a Prohibition Notice is not automatically suspended and will usually need to be complied with prior to the appeal process. If your organisation is served with one of these Notices, then the day to day running and management of the organisation could be seriously affected. This can lead to a loss of business if contractual obligations cannot be honoured or substantial costs are incurred in order to comply with the requirements of a Notice. It is, therefore, vitally important to make sure that a Notice is appropriate, achievable in its demands and legally accurate. If not, these Notices can and should be appealed. Clearly, the service of a Notice cannot be taken lightly as the HSE maintains a publically accessible register of all Notices which both customers and competitors can search easily. Local authorities Local Authorities are responsible for enforcing compliance in the following areas: Offices Shops Hotels Restaurants Pubs and clubs Care homes Local Authorities may also serve an Improvement or Prohibition Notice in the same way as the HSE. A failure to comply with a Notice may result in prosecution. The Scottish Environmental Protection Agency (SEPA) SEPA is responsible for enforcing compliance with environmental legislation in Scotland. As with all of the key players, SEPA adopts a combination of formal and informal compliance measures ranging from initial warning letters to referral for prosecution. In a formal context, SEPA may opt for one of the following measures available under environmental legislation: Enforcement Notice Suspension (of environmental licence) Notice Revocation (of environmental licence) Notice A failure to comply with a Notice served by SEPA may result in prosecution.

MAIB / MCA The MAIB, MCA and HSE co-ordinate to enforce compliance with health & safety legislation so far as it relates to land based, shipping and offshore activities. The MAIB has no enforcement powers but is the investigatory body for shipping incidents. The MCA is responsible for enforcing all merchant shipping regulations in respect of occupational health & safety, the safety of vessels, safe navigation and operation. The HSE is responsible for enforcing compliance of health & safety legislation relating to all land based and offshore work activities. Local authorities may also have a narrow involvement in certain water based leisure activities. The HSE and MCA share similar powers of enforcement including Improvement and Prohibition Notices. A failure to comply with a Notice may result in prosecution.

PROSECUTION The approach to the prosecution of health & safety offences in Scotland is very different to that in the rest of the UK. In England and Wales, the HSE manages health & safety enforcement action, from investigation through to conviction. The HSE decides whether or not to prosecute and also conducts the prosecution. In Scotland, the Crown Office and Procurator Fiscal Service (COPFS) receives a report from the HSE or enforcing body on conclusion of its investigation. In Scotland, the COPFS, as opposed to the HSE, decides whether or not to prosecute and conducts the prosecution. In 2009, a dedicated Health and Safety Division was established covering all of Scotland from bases in Glasgow, Edinburgh and Aberdeen. The Division includes specialist prosecutors who work closely with the HSE, local authorities and other enforcement agencies. The Division is also responsible for directing all joint investigations (typically involving the police and HSE) under the Work Related Deaths Protocol where there is potential for prosecution under the Corporate Manslaughter and Corporate Homicide Act 2007 or other serious criminal offences. Our expert Health & Safety Team advises and represents corporate and individual clients facing prosecution in the Scottish criminal courts. We advise clients from initial reporting of the incident itself to the court hearing itself. In particular, we can advise on: Alleged breaches of H&S law How the internal investigation of the incident should be conducted What plea should be entered How to secure the best possible outcome Any mitigation that requires to be presented to the court following in order to secure the lowest possible sentence MODE OF PROSECUTION Summary procedure Summary procedure covers less serious cases and a trial is held in Sheriff or Justice of the Peace Court before a judge without a jury. Three types of judges sit in Summary Courts. These are Sheriffs and Stipendiary Magistrates (who are legally qualified) and Justices of the Peace who are lay judges but sit with a qualified legal adviser. The Procurator Fiscal prosecutes cases under Summary Procedure and there are three verdicts available to the judge: guilty, not guilty, or not proven. A not proven verdict is the equivalent of not guilty in that it is an acquittal. Solemn procedure Solemn procedure covers the most serious cases. It involves trial on indictment before a Sheriff or High Court Judge sitting with a jury. A Scottish jury is made up of 15 people and a simple majority (i.e. 8-7) is sufficient to

establish guilt or innocence. Like Summary Procedure three verdicts are available to the jury: guilty, not guilty, or not proven. OFFENCES & PENALTIES The table below shows the main health & safety offences together with the maximum penalties under both Summary and Solemn procedure. Offence Penalty on Summary Conviction Penalty on Conviction on Indictment S.33(1)(a) S2 S6 S.33(1)(a) S7 5,000 and/or 12 months S.33(1) (b) S8 S.33(1) (b) S9 20,000 Unlimited fine A breach of H&S regulations Offence relating to S14 enquiries 5,000 (Level 5) Summary only Breach of any requirement imposed by Inspector under S20 & S25 Attempting to/preventing a person speaking to Inspector Contravention of a Prohibition Notice or an Improvement Notice

Obstruction 5,000 (Level 5) and/or 12 months Summary only (i) relating to S27 5,000 Unlimited fine Disclosure in contravention to sections 27(4) and 28 of the HSWA 1974 5,000 and/or 12 months Making a false statement Making a false entry in register Using a document with intent to deceive Impersonating an inspector 5,000 (Level 5) Summary only Offences relating to S42 orders Any other offence under existing statutory provisions COMPENSATION ORDERS Scottish courts have a discretionary power to make an order requiring a convicted defendant to pay compensation for any personal injury, loss or damage resulting from the offence. However, no compensation order can be made in respect of loss suffered in consequence of the death of any person. The maximum sum that can be awarded following summary proceedings is 5,000 in respect of each offence. There is no limit to the amount of compensation which may be awarded in solemn cases. A compensation order can be imposed alongside a separate sentence or as a penalty in its own right. Where both a fine and a compensation order are appropriate but the offender lacks the means to pay both, the compensation order payment will take priority. COMMUNITY BASED PUNISHMENTS Where the court considers that a custodial sentence is appropriate, it may make an alternative community service order, requiring the offender to perform unpaid work on behalf of the community for a specified period

(minimum of 80 or maximum of 300 hours). Before such an order is made, the offender must have consented to it and the court must have considered a pre-sentence report assessing the offender's suitability for community service. DISQUALIFICATION ORDERS The court is empowered to make a disqualification order against a person convicted of an indictable offence. Disqualified persons must not, without the leave of the court, be a director, liquidator or administrator of a company, or manager of company property, or in any way be concerned or take part in the promotion, formation or management of a company for a specified period. The maximum period of disqualification is five years on summary conviction and 15 years in solemn cases. REMEDIAL ACTION Where a person is convicted of breaching a relevant statutory provision and it appears to the court that it is within their power to remedy any matters, then the court can (in addition to or instead of any other sentence) order the offender to take steps to remedy those matters. The court will also specify the time for compliance with the order. It is a separate offence to fail to comply with an order made by the court. FATAL ACCIDENT INQUIRY (FAI) It is the duty of the Procurator Fiscal (PF) in Scotland to investigate all sudden, suspicious, accidental, unexpected and unexplained deaths. Work related incidents leading to fatalities fall within this category. There is also a duty in terms of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 to investigate and hold FAIs into all deaths resulting from accidents in the course of employment or occupation although the requirement to do so may be waived where criminal proceedings have been concluded against any person in respect of the death or any accident from which the death resulted.