Looking at the situation where there has been an incident on site and the injured party is taken to hospital, management are often left thinking “what happens next?”. In this article we hope to address some of the first considerations you should make when thinking through the initial steps after such an incident, focusing on reporting of the incident and the potential for a HSE inspection. To jump to a section, please click on the links below:
- What is a reportable accident?
- HSE Investigation
- Dealing with the HSE on site
- Taking witness evidence
The best place to check what is and is not reportable is to look at the relevant legislation, The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR), or the HSE’s guidance on RIDDOR. However, in terms of an accident causing injury, the following would be reportable:
- The death of any person (worker or non-worker).
- Specified injuries to workers as contained in RIDDOR which includes (amongst others) fractures, amputations, crush injuries, serious burns, scalping, and loss of consciousness through head injury.
- Over seven day incapacitation of a worker. It is worth noting that this seven day period does not include the day of the accident, but does include weekends and rest days. The report must be made within 15 days of the accident. This has changed from the previous requirement which was for over three day incapacitations, which now are only required to be recorded in an accident book rather than reported under RIDDOR.
- Non-fatal accidents to non-workers (e.g. members of the public) must be reported if they result in an injury and the person is taken directly from the scene of the accident to hospital for treatment for that injury.
The occurrence or incident will need to be reported to the Health and Safety Executive in accordance with RIDDOR. In all reality, the incident and subsequent report can trigger a visit from an HSE Inspector. As a national regulator, the HSE will investigate incidents which fall within the scope of its enforcement powers, and in accordance with its enforcement policies and management model. It should be noted that Local Authority Environmental Health Officers have responsibility for investigations at certain types of work premises. We refer to the HSE throughout but these comments are equally applicable for Local Authority investigations, with the exception of Fees For Intervention (FFI) (see below).
Statistics indicate that the HSE only investigates around 5% of all accidents but clearly the more serious the accident, the more likely an investigation is. The seriousness of an incident will also determine how quickly an inspector is deployed to site. A fatality will prompt an immediate response; a less serious one may give a site a couple of day’s breathing space before the knock at the door.
Following an incident, it is natural for conscientious companies to carry out an investigation and implement corrective actions to prevent a recurrence. However, this can identify the issues for HSE, making their job of taking enforcement action far easier. Therefore, any investigation at this stage should be a high level overview investigation and it should not be concluded/completed. Any detailed investigation should be instructed by the company’s solicitors to be prepared “in contemplation of legal proceedings.” This will protect any investigation report from the regulators as it will attract legal advice privilege.
The HSE has wide powers to obtain evidence, including inspections and sampling, taking statements from employees, and seeking to formally interview the company (or its directors) under The Police and Criminal Evidence Act 1984.
There are three modes of enforcement action that are open to HSE when visiting a site which a company needs to be mindful of when an HSE inspector calls. The first is the potential for the inspector to spot what is known as a “material breach” of health and safety law. This would prompt the “fees for intervention” (FFI) regime where you see charges for the inspector’s time in investigating and ensuring remedial action is taken by the company at a cost of £124 per hour. The second situation is the risk of enforcement action in the form of an improvement or prohibition notice. Dealing with the first two adequately will greatly reduce the chances of the third option being selected – prosecution.
In the scenario we have here, where an incident has been reported, we will see the HSE assuming a “material breach” has taken place. FFI is only triggered when, in the opinion of a HSE Inspector, there is or has been a material breach of health and safety law that requires the HSE to issue notice, in writing (known as a notice of contravention) of that opinion to the duty holder.
For FFI to kick in, suspicion that a material breach may have taken place is not enough, the inspector must be of the opinion that a material breach has taken or is taking place.
The inspector’s experience on site will play a key role in his/her decision on which course of action he/she takes. Companies and in particular representatives on site should remember that, following an incident, HSE will be attending the site with the benefit (or in some cases hindrance) of hindsight and will generally default to the unrealistic expectation of a utopian site where everything is in a state of textbook-like perfection. Therefore a proper initial response is critical and the company representative needs to make sure that s/he is confident to explain the company’s management systems as well as an understanding of general legal requirements relating to the company’s operations.
When an inspector arrives and signs in, he/she should be provided with an induction/current hazard information briefing before commencing out onto site where relevant. It is advisable for the company representative to take accurate, detailed notes of the visit including any discussions, observations and potential issues. The notes should be supported by photographs of each of the areas of discussion to help senior management understand the conditions on site at the time of the visit, as well as any opinions the inspector may offer in relation to the incident.
Under section 20 of the Health and Safety at Work etc. Act 1974 an inspector has the power to require the production of, inspect and take copies of relevant documents. If an inspector is intending to seize articles and/or documentation, a detailed list should be made of exactly what has been copied, taken or referred to as being of potential interest to the HSE’s investigation and a receipt obtained from the inspector. This can help any legal team that gets involved later. It is important to remember however, that while inspectors can ask to inspect and copy documents, this does not apply to any documents covered by legal professional privilege.
One important power that the HSE holds enables officers to require information from any person they think may be able to provide information relevant to the investigation. This power is often used to question employees. The employee is protected from self-incrimination as their answers are not admissible against them in evidence. However, such answers are admissible in evidence against the employer or its directors. This power to compel answers from witnesses is a strong tool for the HSE; even the Police do not have such a power!
For the avoidance of any doubt, when any questions are being asked during a site visit, the site manager should make it clear to the HSE inspector that s/he is not authorised to speak on behalf of the company.
It is very likely that after the initial visit, if the inspector has concerns, they will return to take statements from employees. It is advisable that such people are told to give careful consideration of answers ahead of providing them in order to avoid providing incorrect information. Often, they will not be provided with a copy of the statement that they gave afterwards and therefore many companies seek to have their own legal teams take statements from these people around the same time. Shadowing the HSE’s investigation can prove to be very useful for companies seeking to protect their position, particularly in more serious incidents.
Irrespective of the intended course of action, the approach by the company and site team should be the same. Whilst the FFI route may be preferable to formal enforcement notices, companies need to be mindful that accepting and paying invoices without question could be viewed as accepting liability. Payment of FFI costs could be used as evidence, either in a subsequent health and safety prosecution or in a personal injury case, that the business has accepted liability, placing insurers in a difficult position in defending any personal injury claim and potentially voiding insurance policies. It may seem like an easy escape to pay an invoice from the HSE, but this could be used as “bad character” evidence against the company at a later date. Therefore, advice should always be sought.
It may sound like a relatively negative point to end on, but in the world of targets and FFI, companies must now remember that there is no such thing as a friendly visit from the HSE.This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.