When the (H&S) Inspector Calls…Rebecca Carriage

Howes Percival LLP

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What I am going to cover

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• (Not just H&S)

• What is an Inspector?

• Inspectors’ powers

• Where could it all end up?

• Interviews by Inspectors

• Hints and tips

What is a Inspector?

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• S 19 HSWA

• Appointed by the enforcing authority

• In writing

• Powers and area of authority can be limited

• Asking to see Inspectors’ written authority?

Inspectors’ Powers (1)

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• S 20(2) HSWA (and s 25 HSWA - “imminent danger”)

• Key powers

– Entry

– Taking a constable

– Examine and investigate

– Take away samples, take photos, take copies of paperwork

– Require information of individuals – s 20(2)(j)

– Facilities to be afforded to the Inspector to carry out powers.

Inspectors’ Powers (2)

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• S 25 – imminent danger:

– Seize or render harmless if believes cause of imminent danger of serious personal injury

Inspectors’ Powers (3)

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You are unlikely to be able to foot-fault an Inspector exercising powers.

But think about timing of interviews – unless s 20(2)(j) used.

Where could it all end up? (1)

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• Prosecution

– Business• Fines• Compensation• Costs• Reputation

– Individuals - if corporate defendant committed an offence – s 37 HSWA

– Where a death occurs• NORMAL “INSPECTOR CALLS” RULES ARE OFF• Manslaughter?• Corporate Manslaughter and Corporate Homicide Act 2007?• Police and HSE often act together

Where could it all end up? (2)

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• Regulatory Enforcement and Sanctions Act 2008?

– Civil sanctions

– Enforcement undertakings

• A “formal caution”

• No further action

• Civil claim/s?

Where could it all end up? (3)

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• Tell your insurers

– Criminal penalties/costs/your costs/compensation orders?

Interviews under Caution (1)

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• Interviews vs “interviews under caution” -- witness or potential defendant?

• Position of employees not representing the company/partnership

• Police and Criminal Evidence Act 1984

• The “caution” – what it means (not the same as a formal caution outcome)

• Legal representation and others “sitting in”.

Interviews under Caution (2)

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• Should the invitation to attend an interview be accepted?

– With the right interviewee, it could help you explain and put forward the company’s point of view

– It could reveal “where the HSE is coming from”

– It will “show willing” (a mitigation point)

BUT -

– It could result in admissions – acceptable if already proven but if not? (More an issue for environmental than H&S?)

Interviews under Caution (3)

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• Who should represent the company at the interview?

– Someone who…

• is senior (usually)

• understands legal obligations and in particular management and competency duties

• knows what happened and has an overall grasp

• has gravitas

• is not aggressive, prone to lose temper, pompous, in a hurry, terrified, “known” to the interviewers, unprepared, thinks (and, worse still, says) ‘elf ‘n’ safety is a load of old *******

Interviews under Caution (4)

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• Preparation for the interview

– Agreeing who is going to do the interview on behalf of the company/partnership

– Is the proposed time and date for the interview acceptable?

– Where is HSE “coming from”?

• Hint in the title?

• Information from other witnesses?

• An obvious accident?

• Any other hints?

Interviews under Caution (5)

– Prepare accordingly but there will always be emphasis on…

• HSE Guidance and other guidance – HSE website and www.safequarry.com

• Competence – including training records, up to date training?

• Processes – RAs; does what was done match what is said in the RA?

• Any “previous” – especially if it relates to the same type of incident – not just prosecutions but also other investigations, reported near-hits

• The paperwork. Do you have all items likely to be referred to?

Interviews under Caution (6)

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• What happens at the interview?

– Mind games (recorder, 2 tapes/CDs, “you are not under arrest”. Do not try code tactics with your legal representative/other person sitting in)

– Usually 2 interviewers

– Usually small and hot room – do not wear your thickest suit

– You can break – but constant stops by a legal representative look bad

– Not just a case of answering HSE’s questions – do you have anything to add? If so, do so with care

– The HSE will not tell you what they intend to do at the interview

– A copy of the tape is usually only provided if there are further proceedings

– It is tiring – be kind to yourself before and after

Hints and Tips (1)

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• Be prepared

• Be equipped

• Be on time

• Be measured

• Be prepared for press interest – everything via your press officer/a nominated member of staff?

Hints and Tips (2)

Should you establish a protocol for who says what to whom in the business?

Management should always be contactable to take control if required

Rules for who takes the initiative – needs to be subtle; you are not saying “employees may not talk to HSE”

Questions?

Rebecca Carriage

Howes Percival LLP

rebecca.carriage@howespercival.com

01603 580084

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