Wise CounselAccidents happen, ensure you’re not over exposed

17 November 2015

Accidents Happen – then what?

• Focus on internal Investigation

• Focus on external Investigation

• Limiting exposure (further accidents/‘handling errors’)

The Internal Investigation

HSG 245 “Investigating Accidents and Incidents”

• “An effective investigation requires a methodical,

structured approach to information gathering, collation and analysis. The findings of the investigation will form the basis of an action plan to prevent the accident or incident from happening again and for improving your overall management of risk. Your findings will also point to areas of your risk assessments that need to be reviewed. This link with risk assessment(s) is a legal duty.”

• “To get rid of weeds you must dig up the root. If you only cut off the foliage, the weed will grow again.”

A Good Inside Job

• Awareness of legal privilege and discovery

• Accurate and timely investigation and record keeping

• Maintenance of good staff morale and communication

• Appropriate post-accident risk assessment and action

External Investigation Process

Workplace Accident

PSNI

(fatality)HSENI

Investigation

Protocol for

liaison

Coroner

Corporate manslaughter/gross

negligence

manslaughter

Health & Safety

offences

PPSPPS

Police Powers

Police and Criminal Evidence (NI) Order 1989

and Codes of Practice

Generally, the Police have wide powers including:

• Search by consent or without consent

• General power of search when lawfully on premises

• Can obtain a warrant, production order, seize and sift

• Remove evidence, articles, computer records etc.

Powers of HSE Inspectors

Article 22:

• Enter premises

• Examine and investigate

• “Do not disturb”

• Take measurements, photographs, recordings and

samples

• Require the production of, inspect and take copies of

relevant documents

• Require facilities and assistance

• Require answers to questions – declaration of truth

• Seize articles/substances

Additional HSE Powers

• Service of improvement and prohibition notices

• Can inspectors remove equipment?

• What about computers and other electronic evidence?

• Powers under PACE?

Responding to Document Requests

• Try to establish a single point of contact for requests

• Provide copies rather than originals

• Keep a copy/file of everything provided

• Do not provide more than needed

• Do not provide anything that involves a lawyer (in-house

or external)

• Consider asking the enforcement officer to make request

in writing to Head Office

• Employees should not provide company documents

unless authorised to do so

Common Document Problems

• There isn’t one!

• ‘Tick box exercise’

• Not dated or signed off

• Inconsistent or incoherent

• Not reviewed

• No clear ownership

• Doesn’t relate to what is actually happening –

implementation/procedural drift

Types of Interview

• Voluntary interview/Section 9 Statement

• Article 22 – compelled interview (HSE)

• Under caution – suspected of committing a criminal offence

– seek legal advice!

Responding to Interview Requests

• Who is to be interviewed and in what capacity?

• Agree sensible arrangements

• Employee support

• Legal representation?

Top Tips

• Be prepared

• Stay in control

• Stay calm and co-operate

Staying on the Right Side of the Law

• Offences under the microscope

• Liability/impact

Health & Safety Related Offences

Corporate Offences Individual Offences

Corporate Manslaughter

*Article 5 *Article 4

Gross negligence

manslaughter

*Article 34A *Article 8

Health and Safety at Work (NI) Order 1978

Individual Offences

• Article 8: It shall be the duty of every employee while at

work...to take reasonable care for the health and safety of

himself and of other persons who may be affected by his

acts or omissions at work

• Article 34A: specific provision for director/managers who

consent/connive/neglect/fail to exercise reasonable

diligence etc.

• Gross Negligence Manslaughter

Corporate Offences

• Article 4(1): It shall be the duty of every employer to

ensure, so far as is reasonably practicable, the health,

safety and welfare at work of all his employees.

• Article 5(1): It shall be the duty of every employer to

conduct his undertaking in such a way as to ensure, so

far as is reasonably practicable, that persons not in his

employment who may be affected thereby are not

thereby exposed to risks to their health or safety.

• Numerous Regulations

• ACoPs and Guidance

What is Reasonable Practicability?

• Balancing exercise

• Risk – what is the potential for harm and the

chance of it occurring

• Foreseeability – the more foreseeable, the graver the

offence

• Ultimately only a Court can decide....

• Article 37: creates a reverse burden of proof - the

company has to prove it has done enough

Corporate Manslaughter

Corporate Manslaughter and Corporate Homicide Act 2007:

“An organisation ... is guilty of an offence if the way in which

its activities are managed or organised —

a) causes a person's death, and

b) amounts to a gross breach of a relevant duty of care

owed by the organisation to the deceased.”

Potential Penalties - Summary

Health & Safety Offences:

• Corporates – unlimited

fines

• Individuals – unlimited

fines, imprisonment,

director disqualification

Corporate Manslaughter:

• Unlimited fines

• Remedial and/or

publicity orders

• No imprisonment!

Criminal Liability

H&S Sentencing

• Sentencing Guidelines Council for England and Wales

• New Guidelines announced – ‘Health and safety

offences, corporate manslaughter and food safety and

hygiene offences’ – in force from 1st February 2016

• Covers: individual and corporate health and safety

offences and corporate manslaughter in England and

Wales

• Anticipated to result in an increase in the level of fines

• There has been a firm trend of NI Courts referring to

the old guidelines

Other consequences of H&S

Breaches

• Death/serious injury

• Low morale

• Lengthy investigation

• Increased management time

• Adverse publicity

• Enforcement action – affects tenders?

• Criminal record/Imprisonment/Director Disqualification

• Fine/Costs/Civil Claim

Thank You & Keep in Touch!

jacqueline.mcaleese@carson-mcdowell.com

olivia.carroll@carson-mcdowell.com

@carsonmcdowell

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