Health and Safety Investigations and Prosecutions
The Health and Safety Executive (HSE) came into existence for the purpose of preventing UK work-related death, personal injury and illness. It does so by imposing penalties on those employers who place their employees or visitors at risk. Its officers are authorised to inspect businesses and investigate any injury or illness. Investigations are thorough and the police will be involved where injury has caused death.
Where an employee or visitor has been injured at your premises, you must follow your reporting obligations. Your health and safety representative should be aware of these but we can assist if necessary. An investigation is likely to follow by an HSE Inspector who is familiar with your type of business. In the event of a fatality, the investigation will be a joint one with the Police.
The aim of the investigation is to establish the facts leading to the injury or death and identify the cause(s) in order to prevent a recurrence. The gathering of information may show potential breaches of health and safety legislation. Where there has been a breach, the HSE will take enforcement action.
Interview under caution
Although there is no express legal requirement for interviews to be under caution before any decision to prosecute is taken, investigators have a duty to allow interested parties the opportunity to answer the allegations against them and give their own account. It can be a daunting process and in our experience guidance before interview and being accompanied during interview is of comfort and assistance particularly since where a company is invited to attend, you will be asked to nominate a senior person within the company for interview. Whilst an interested party is not obliged to accept an invitation to interview, if they fail to do so this can be brought to the court’s attention at the time of sentencing/imposition of penalties. The extent of co-operation during investigation is relevant at this stage.
Following investigation, a decision will be made by the HSE whether to prosecute for breach of legislation or as to which of the various enforcement actions, if any, is appropriate.
The main actions are:
- Notices – prohibition and improvement
- Altering licences
A decision may be taken to prosecute the company and/or specific directors and employees. It is often necessary for the directors and employees to have separate legal representation where there is a potential conflict of interest.
Unless the HSE prosecution fails, it is for the Court to decide the appropriate penalty in all the circumstances. These have risen quite dramatically in recent years with the imposition of hefty fines. Matters taken into account include company turnover and profit over the last few years. The aim is to ensure the fine imposed has a noteworthy impact upon financial performance and management failures are made public.
The latter is by a publicity order which can have a serious impact upon both existing and future company business. It is an extremely important element.
In addition to the fine, the company will be responsible for most if not all of the prosecution costs both of the investigation and the court hearing.
Employers’ and public liability insurance policies do not cover the payment of fines or prosecution costs.