An overview of the corporate H&S scenario, by Lesley White
The cost of a health and safety breach can easily run to hundreds of thousands of pounds. With the excess on a company’s liability insurance being so prohibitive – typically in the millions for larger companies– many businesses are now effectively self-insured and will bear the full brunt of the ramifications of any breach.
This reality was stark enough before Covid entered our lives. Today, the added issue of Covid compliance (and the eye-watering consequences of failure) means that every employer must ensure that their health and safety measures are up-to-date and adequate.
A major health and safety breach can prove devastating not only for the unfortunate victim but also the company (or indeed individual) held responsible. As well as an investigation and potential prosecution, there may be a civil claim for compensation. Depending on the circumstances, this can reach six or seven figures.
Faced with such a crippling double-whammy, complying to the letter of health and safety legislation no longer seems like burdensome ‘red tape’; but more like an essential way to safeguard your business.
What’s the process?
So, let’s take a brief look at the process you can expect in the event of a health and safety breach:
The agency responsible for regulating and enforcing workplace health, safety and welfare is
The Health and Safety Executive (HSE). An HSE inspector may enter company premises at any reasonable time, with or without notice, either for a routine inspection or following an accident potentially caused by work activities.
Where it is believed serious breaches of health and safety regulations have occurred, the HSE can conduct intrusive and complex investigations. This is the point at which you need to seek help: I recommend to all our clients they do not attempt to handle these without legal advice and assistance.
The inspector has five main powers:
- To carry out an examination including taking measurements, photographs and samples.
- To take possession of any article and arrange for it to be dismantled or tested.
- To seize and make safe any article or substance that could cause personal injury.
- To request information and take statements from those people who might help the investigation.
- To inspect and copy any documents.
In our experience, one of the most stressful parts of the investigation process is giving statements to the HSE. Where it is believed the company has committed an offence, an interview will take place under caution. Understandably, this is a grave prospect for anyone.
Furthermore, as a director, manager or someone deemed responsible for corporate policy, you may also be guilty of an offence in your personal capacity under the Health and Safety at Work Act. In other words, it is no longer just a professional matter, but a very personal one.
As a result, a conflict of interest may arise between directors, necessitating separate legal representation. Similarly, senior employees such as health and safety advisors and managers may need specific advice regarding their own positions.
There is a range of sanctions available to the HSE if it considers there has been a breach of duty. The steps taken in any particular case will obviously depend on the severity of breach, the consequences of the breach and the broader ‘public interest’.
- The least punitive measure is to issue an informal warning (verbally or in writing) and issue advice on action to be taken to prevent a recurrence.
- The next possible sanction is to issue an improvement notice. This written document specifies the breach and outlines what should be done to correct it. It provides a minimum of 21 days for remedial action and aims to help the business to rectify its failings. The business MUST comply with the notice; failure to do so can result in prosecution.
- The HSE may alternatively issue a prohibition notice. This is appropriate where activities ‘give rise to a risk of serious personal injury’. It normally requires the business to stop the activity immediately and not to resume it until specified action has been taken to remove or control the risk. Again, failure to comply with the notice can result in prosecution.
- In the most serious cases, the inspector may decide to prosecute. In the case of fatality, there will be an initial inquest. The police will consider if the work-related incident is serious enough to warrant a separate prosecution for gross negligence manslaughter or corporate manslaughter.
Legal representation is crucial both in dealing with initial procedural matters raised by the coroner and the inquest itself. Many can run into several weeks.
How we can help
It is essential to seek specialist legal help as soon as a business knows it is under HSE or police investigation. The sooner you act, the greater the chances of a successful defence.
As lawyers experienced in health and safety matters, we can help clients in various ways:
- responding to enquiries.
- challenging notices served by the HSE inspector.
- attending interviews under caution during the investigation.
- representation at any inquest.
- defending clients throughout any HSE or police prosecution.
- providing written submissions on regulatory decisions.
As the saying goes, prevention is better than cure. So, the first priority is always to ensure that your business understands and complies with all relevant health and safety regulations. But if things do go wrong, and the HSE inspector starts an investigation, then you should call your legal advisor as soon as possible. We may just prevent a difficult situation from becoming much worse.