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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