Serious accidents can occur at organisations with the best health and safety management systems. So, what should you do if the worst happens?
That was the subject of discussions at IOSH's Food and Drink Industries Group event in Leicester on 14 February. Chris Newton, from Keoghs LLP, provides the five steps organisations should take.
1. Initial notifications and reporting
Get in touch with relevant insurers, whether it relates to employers' liability, public liability or motor liability.
Organisations should also seek to notify the Health and Safety Executive (in UK cases) via RIDDOR. See the HSE website for a list of reportable incidents and the timescale for reporting. Accident circumstances should be kept succinct and factual.
The incident should also be entered into the company accident book.
2. Internal investigation
Consider whether your in-house legal team or external solicitor should commission the investigation report. A confidential report prepared for the purposes of giving or obtaining legal advice may attract legal advice privilege. If it does, the report does not have to be disclosed to the investigating and prosecuting authority or to another party in any civil claim.
Consider whether evidence is required. Any witness statements should be factual and avoid opinion evidence or matters which are outside the knowledge of the maker.
Preserve evidence, including photographs, CCTV, physical evidence such as machinery or equipment, sketch plans, health and safety policy, risk assessments, method statements, permits to work, training records, maintenance records and start-up checklists.
Experts should normally be instructed by either an in-house legal team or an external solicitor to help ensure that any reports produced are protected by litigation privilege.
Consider health and safety management systems and any failures in implementing that system, training of relevant staff and supervision.
Consider whether any disciplinary action is required. If it is, that should occur as soon as reasonably practicable and be carried out in accordance with established disciplinary procedures.
3. External investigation
Appoint one person to be the point of contact with the HSE or regulatory authority. Keep notes and copies of all documents and information provided by/to the HSE. Seek immediate legal advice if the HSE serve any notices following the accident.
Inform all staff that they are to speak for themselves and not the company and to notify the company should they be invited to interview so legal representation/advice can be arranged if appropriate.
Where an interview is requested, clarify: if the interviewee is being treated as a witness or suspect; capacity of interviewee – individual or as a representative of the company; on what basis the interview is to be conducted – voluntary statement or under section 20 Health and Safety
at Work etc Act or Police and Criminal Evidence Act (PACE).
Where an individual or representative of a company is invited to a PACE interview, that person should have legal advice and consideration needs to be given as to whether that person should attend the interview and/or submit a prepared statement.
Separate legal representation will be necessary for individuals interviewed as a suspect under PACE because their interests may conflict with the company.
Take advice before paying any HSE Fees for Intervention invoices because they are issued when the inspector believes that there has been a material breach of health and safety legislation.
4. Press and social media
Appoint one person to deal with any press enquiries and social media issues and obtain prior approval from your lawyers and insurers before issuing any press release or making any comment.
5. Injured person/family
Appoint an appropriate person to communicate with the family but seek approval/advice from your insurers/lawyers before doing so. Agree a strategy in terms of visits, finance, return to work, counselling and/or treatment.
Image: Chris Newton speaks to delegates at the IOSH event