In this guide, BCL partner Tom McNeill explains the process for responding to a criminal regulatory investigation following a serious accident or dangerous occurrence in a workplace.
When a worker or member of the public is killed or seriously injured, or there is a dangerous occurrence in the workplace, there is frequently a criminal regulatory investigation that could result in organisations and/or directors, managers or others being prosecuted.
Most organisations recognise the importance of their safety responsibilities and will be keen to cooperate with the enforcing authority, to conduct their own investigation in relation to why the system failed, and where appropriate to improve the safe system of work. Organisations will however also want to protect against the risk of prosecution and other regulatory risks. These goals can be pursued simultaneously.
The detail of how cooperation is provided, for example, may be enormously important to the final outcome. Handing over voluminous records for the enforcing authority to review is one approach. Another is to properly investigate so as to fully understand the systems in place, both documented and undocumented, and effectively explain systems to the enforcing authority when providing copies of relevant records.
Similarly, making ‘improvements’ before fully understanding the safe system of work, and if appropriate seeking expert views in relation to complex systems or plant, could miss the point or even lead to the introduction of new risks which do not improve safety, at the same time as undermining the existing safe system of work. In contrast, appropriate and effective remediation may in the right circumstances be a powerful tool in persuading an enforcing authority not to prosecute.
In short, any response needs to be founded on a proper understanding of the facts, in addition to the nature of the legal duties and likely approach of any enforcing authority. In addition to a general warning that organisations should seek legal advice following a serious incident, below are some particular factors for organisations to consider.
Reports to enforcing authorities
Serious incidents will usually be reported to enforcing authorities. The more serious the incident the more likely it is to generate an enforcing authority investigation.
The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (‘RIDDOR’) requires ‘responsible persons’ including employers and persons in control of premises to report to the ‘relevant enforcing authority’:
- work-related accidents which cause death or specified serious injuries
- specified dangerous occurrences (near-miss events)
- specified occupational diseases when diagnosed
The ‘relevant enforcing authority’ includes the Health and Safety Executive (‘HSE’), the Office of Rail and Road (‘ORR’), and Local Authorities. Failing to report under RIDDOR when required to do so is a criminal offence – it will also increase the risk of enforcement action if and when the enforcing authority learns of the incident.
Enforcing authority investigation
On receipt of a RIDDOR report (or following an inspection etc.), an enforcing authority will decide whether to investigate any potential breach in line with their enforcement policy. For example, the HSE’s Enforcement Policy Statement states that it will take the following factors into account:
- the scale of potential or actual harm
- the seriousness of any potential breach of the law
- enforcement priorities
- the level of resource to be used
- the practicality of achieving results
- the wider relevance of the event, including serious public concern.
If there is a fatal accident, the police will attend the scene and, in line with the Work Related Death Protocol, assume primacy and jointly investigate with the enforcing authority where there is a suspicion of corporate or individual manslaughter.
Powers of investigators
Whilst the Health and Safety at Work etc. Act 1974 (‘HSWA’) does not provide inspectors with the power of arrest, section 20 provides significant powers including the power to:
- enter premises (but not conduct a search)
- examine and investigate as may be necessary
- require answers to such questions as the inspector thinks fit
- require the production of, inspect, and take copies of books or documents.
By way of sweeping-up provision, section 20 also gives the inspector ‘any other power which is necessary for the purpose of carrying into effect any of the relevant statutory provisions within the field of responsibility of the enforcing authority’.
The police have the power of arrest and, in the health and safety context, this is most likely to be exercised during the course of a gross negligence manslaughter investigation pursuant to the Work Related Death Protocol. The police also have powers of search and entry which may be exercisable in some circumstances.
An inspector may serve an improvement notice requiring a person to remedy what are in his opinion health and safety breaches. If the inspector believes that activities under the control of a person will involve a risk of serious personal injury, he may serve a prohibition notice on that person directing that such activities not be carried out until the specified contraventions have been remedied. It is a criminal offence not to comply with an improvement or prohibition notice. Note that even where deficiencies are remedied, for serious breaches there will remain a risk of criminal prosecution – and the remedial steps taken will prima facie be evidence of breach.
Improvement notices and prohibition notices can be appealed to the Employment Tribunal within 21 days from the day on which the notice is served. An appeal against an improvement notice has the effect of suspending the operation of the notice until the appeal is disposed of or withdrawn. An appeal against a prohibition notice does not have the effect of suspending its operation unless so directed by the Tribunal. In some circumstances, an enforcing authority may agree to modify or withdraw a notice.
Simultaneous to any enforcing authority investigation, the employer will likely have a duty to conduct their own investigation into the circumstances surrounding the incident, not least to comply with the duty under the Management of Health and Safety at Work Regulations 1999, regulation 5, which requires employers to plan, organise, control, monitor and review their health and safety arrangements.
Material produced during such an investigation, including any report and findings, will be disclosable to the enforcing authorities unless protected by legal professional privilege (‘LPP’). The best way to ensure LPP is by involving lawyers.
A properly conducted internal investigation will provide the basis for any response to the enforcing authority’s investigation. Without a thorough understanding of the safe system of work, including plant and equipment, as well as the circumstances of any accident or near-miss, it will not be possible to effectively protect the organisation’s interests, or its directors and managers.
The HSWA places a number of onerous general duties on employers and others, breach of which is a criminal offence. The most significant duties on organisations are those contained in sections 2(1) and 3(1) of the HSWA, which require employers to ensure, so far as reasonably practicable, the health and safety of employees and non-employees affected by the conduct of the undertaking. The HSWA also imposes other duties on employers and other persons. Health and safety regulations created under the HSWA impose specific (and sometimes stricter) requirements.
The employer’s duties are personal and non-delegable, meaning that employers can delegate the performance of the duty to others, but not responsibility for non-performance. Even if an organisation has devised a safe system of work, a failure by an employee to operate that system is likely to place the employer in breach of its duty. Reasonably practicable steps will include not only instructing employees on safety procedures, but also ensuring that they are followed, such as by reasonable supervision and monitoring.
Section 37 creates secondary liability for senior officers arising out of the organisation’s conduct. If either of the above health and safety offences is committed by an organisation with the consent or connivance of, or attributable to any neglect on the part of a senior officer of the organisation, that person can also be prosecuted for the offence. Section 7 places a duty on employees to take reasonable care for the health and safety of others who may be affected by their acts or omissions. Failure to do so is a criminal offence.
Following a fatal accident, the police will also investigate with a view to prosecuting an organisation for corporate manslaughter or an individual for gross negligence manslaughter.
Approach of enforcing authorities
Following an accident or near-miss, the starting assumption of the enforcing authority will usually be that, not merely in law but as a matter of fact, the incident was the fault of the organisation or organisations involved. The HSE, for example, has produced guidance which states that ‘Blaming individuals is ultimately fruitless…The root causes of adverse events are almost inevitably management, organisational or planning failures’ – and this approach exactly reflects how the HSE and other regulators investigate and enforce health and safety.
If the police assume primacy their investigation will have a different emphasis: they will be principally concerned with suspected gross negligence by an individual and/or the role of ‘senior management’ in contributing to a management failure by the organisation with a view to establishing corporate manslaughter.
Once an investigation has built momentum, it is much more difficult to change its course. Accordingly, an organisation’s defence should begin at the outset. That should mean undertaking a proper internal investigation at the outset.
From early on, there will be information requests covering relevant aspects of the organisation’s systems. Whether or not an enforcement notice is served, it will be necessary to consider remedial actions. How the organisation reacts, and the responses to information requests, will be key to any enforcement decision. This is particularly so when there are complexities or context which enforcing authorities might otherwise not fully recognise. For example, in relation to:
- complex systems
- partially undocumented systems
- roles of third parties
- complex plant and machinery.
In many cases it is the opportunity to set out early on, clearly and persuasively, if need be with expert evidence, the largely effective and appropriate nature of the organisation’s systems, notwithstanding the fact of any post-incident improvements, which provides the best chance of avoiding prosecution. The bigger the gap between the systems that should have been in place and those that were the more likely a prosecution.
A decision to prosecute a health and safety offence depends not only on whether the enforcing authority can establish a breach of health and safety legislation: in most cases following a serious incident the enforcing authority will be confident that it can (although query which organisation is in the firing line)! The enforcing authority must also consider whether it is in the public interest to bring a prosecution.
The HSE’s Enforcement Policy Statement states that, in the public interest, they will normally prosecute or recommend prosecution where one or more of the following circumstances in the (non-exhaustive) list apply:
- death was a result of a breach of the legislation
- the gravity of an alleged offence, taken together with the seriousness of any actual or potential harm, or the general record and approach of the offender warrants it
- there has been reckless disregard of health and safety requirements
- there have been repeated breaches which give rise to significant risk, or persistent and significant poor compliance
- work has been carried out without, or in serious non-compliance with, an appropriate licence or safety case
- a dutyholder’s standard of managing health and safety is found to be far below what is required by health and safety law and to be giving rise to significant risk
- there has been a failure to comply with an improvement or prohibition notice
- there has been a repetition of a breach that was subject to a simple caution
- false information has been supplied wilfully, or there has been an intent to deceive, in relation to a matter which gives rise to significant risk
- inspectors have been intentionally obstructed in the lawful course of their duties.
In many cases, a proactive and strategic approach, of one kind or another, will be the best strategy. The less serious the incident, the more likely it is that proactive engagement, including in relation to remedial action, will help avoid prosecution.
Even where prosecution for a health and safety offence is a high likelihood, being proactive may still be the best strategy. A proactive approach, if built upon a full understanding of the systems in place and their appropriateness, as need be informed by experts, is often the best way to mitigate the organisation’s position and ensure that any prosecution which cannot be avoided will be on a fairer basis, resulting in a much smaller fine and reduced reputational harm.
A proactive and strategic approach will also mitigate the risk of a corporate manslaughter prosecution following a fatal accident, and protect directors and managers from the risk of individual prosecution.
Many insurance policies provide legal expenses coverage for dealing with investigations and prosecutions following a workplace incident. Most insurers retain a panel of law firms to deal with personal injury claims and will often ask the panel firm to handle the criminal regulatory investigation at the same time.
It is important to note that policyholders with appropriate legal expenses insurance are entitled by law to instruct solicitors of their choice in criminal regulatory cases, where fines are not covered by insurance and can extend to hundreds of thousands or millions of pounds, and where directors, managers and other individuals may face criminal prosecution for offences which carry a risk of imprisonment.
 HSE Enforcement Policy Statement, para 11.1.
 In the context of arresting a person for an indicatable offence or pursuant to a search warrant.
 HSE Enforcement Policy Statement, para 16.1. Two further considerations are identified at para 16.2.