HSE Expert Solicitors
HSE Investigations
The HSE may investigate you if someone reports or complains that there has been an incident or injury in the workplace or in response to a report required under RIDDOR (Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013).
HSE may investigate not only the company but also those in management, including directors.
Health and safety offences (under the Health and Safety at Work etc Act 1974 (HSWA) or other health and safety associated legislation) are concerned with failures to manage health and safety risks and do not require the prosecution to prove that the offence caused any actual harm.
Prosecution
A prosecution may take a number of years before it comes to court. And when it does come to court there will be pressure upon the defendant company (and any individual prosecuted) to state early on its position ie whether it is pleading guilty or not guilty. The implications of prosecution can be significant: high fines, prosecution costs and reputational damage and for convicted individuals the potential of prison.
The strategic decisions taken in the first days after an incident can be crucial.
The preparation work carried out early on in the investigation can be critical to the eventual outcome. It is also important to consider strategy early on and also consider the approach to matters such as enforcement notices, FFI and inquests.
Get Control
FSW can provide you with advice and support throughout the process. We will be able to take you step by step through the process. Please contact us on 0207 993 6960 or email Charlotte Waters.
Health and Safety Offences
Most prosecutions of employers are for failing to ensure the health and safety of employees (section 2 HSWA) and/or non-employees (section 3 HSWA) “so far as is reasonably practicable”.
Employers can also be prosecuted pursuant to specific legislation eg under the regulation 3 of the Management of Health and Safety at Work Regulations 1999 (MHSWR) for failing to carry out a suitable and sufficient risk assessment or regulation 11 of the Provision and Use of Work Equipment Regulations 1998 (PUWER) for inadequate guarding of a machine.
In order to establish a case against the employer under sections 2 or 3 HSWA, the prosecution does not have to prove that anyone was injured or killed only that the employees or non-employees (eg workers of contractors or members of the public) were exposed to a material health and safety risk. This part of the case has to be proved so that the court is sure there has been an exposure to material risk ie proved beyond reasonable doubt. Usually the fact that there has been an accident resulting in serious injury or fatality will be enough to establish there has been an exposure to a material risk.
By section 40 HSWA, once the prosecution has established its case it is then for the defendant to prove on the balance of probabilities (ie a lower standard of proof) it took all reasonably practicable steps to control the risk which is the subject of the prosecution (the reverse burden of proof).
If a company commits a health and safety offence then its directors or senior managers may also be investigated for an offence under section 37(1) HSWA if the corporate offence was due to their consent or connivance or attributable neglect.
Fatal Incidents
Work-related deaths are investigated jointly by the police and the Health and Safety Executive (or other relevant regulator responsible for enforcing health and safety such as a local authority or the Office of Rail and Road) with the police taking the lead. These investigations are governed by the ‘Work-related Deaths: A protocol for liaison’ – see https://www.hse.gov.uk/pubns/wrdp1.pdf.
If there is insufficient evidence to support a manslaughter charge (whether corporate and/or individual) the investigation will be passed to HSE to investigate possible health and safety breaches.
HSE’s Investigation Powers
While their powers are overlapping they are not the same. The powers of the police are set out in the the Police under the Police and Criminal Evidence Act. ("PACE") and the powers of an Inspector of Health and Safety in section 20 HSWA. One important difference is that an Inspector of Health and Safety, unlike a police officer, does not have the power of arrest. As a consequence, a suspect cannot be compelled to attend an HSE interview under caution.
Our expert defence lawyers will guide you throughout the process including site investigations, requests for documentation and to interview witnesses and responding to an invitation to an interview under caution.
Internal Investigation
Those carrying out a criminal investigation may be entitled to a copy of the duty holder’s internal investigation report. Any report produced shortly after the incident should ideally be written as an interim report. A report only has the potential to attract legal professional privilege (LPP) if the investigation was instigated on the instructions of lawyers acting for the organisation and its dominant purpose is for litigation. Neither the police nor the HSE (or other health and safety law regulator) is entitled to documentation that is subject LPP
Poor internal incident investigations can take an incident from bad to worse. A professional investigation team is highly recommended with knowledge of what to look for and who to speak with.
Sentencing
The sentencing guideline forand also health and safety offences is the Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences: Definitive Guideline. This is available on the Sentencing Council’s website (https://www.sentencingcouncil.org.uk/)
The sentencing process requires a step by step approach. The court first considers culpability categorising it as: very high, high, medium or low. It then considers harm by determining a harm category ranging from 1 (highest) to 4 (lowest).
The court can increase the harm category or move substantially up the sentencing range if (i) a number of workers or members of the public were exposed to risk and/or (ii) the offence was a significant cause of actual harm.
The fine is then set by considering the organisation’s turnover. The level of culpability and the harm category are then applied to a table which has four classes of organisation by turnover: micro (under £2m turnover), small (£2m – 10m), medium (£10m - £50m) and large (£50m plus). From this the judge determines the sentencing starting point and the sentencing range then considers aggravating and mitigating factors which respectively increase or decrease the fine within that range.
Be Prepared
FSW have expert knowledge in defending criminal prosecutions and Health and Safety prosecutions. We will give you sound tactical advice. We offer full advice and legal representation throughout the process. Please call Charlotte Waters on 0207 993 6960 for more information about HSE Investigations and Interviews.
Our related health and safety services include