Managing investigationsJune 2016, Exeter

Purpose of discussion

• To consider why it is vital to• Manage our various duties• Manage the investigation if we don’t comply

• To identify common themes in the prosecutions• To identify potential areas of weakness within the

organisation• To review the various elements of investigations• To consider the legal consequences of failures for

both the business and the individual• To identify a way forward

Legal reasons to manage duties • You have to!• Failing which

– FFI– Prosecution

Sections include 2, 3, 7, 36 and 37 HASAWA Corporate Manslaughter Sentence Reputation

Economic reasons to manage duties • 2013/14--New cases of workplace illness

account for around £9.4 billion and workplace injury (including fatalities) cost £4.9 billion

• In 2014/15, 23.3 million days were lost due to work-related ill health and 4.1 million due to workplace injuries.

Moral reasons to manage duties• UK fatalities (2014/15)

– 142• UK major injuries (2014/15)

– 18,084• UK all injuries (2014/15)

– 76,054

Moral reasons to manage • Quotes from family members who have lost a loved one in the

workplace

• “I lost my husband and my son in one morning….what can I say, I felt and still feel empty. They never lived to see their son and grandson.”

• “I remember the day of the funeral. My dad stood outside our home, waiting for the hearse to arrive. The minute he saw the black car slowly edging up the road, and turning to me crying out the words I’ll never forget, “He’s home Soph, Paul’s home”, tears streaming down his face. I have only ever seen my dad cry twice, and I mean really cry, cry with uncontrollable pain and that’s the day we buried his dad, my granddad (just a year to the month before) and that morning in August 2005 when he stood outside the front door to our home and watched as the hearse approached. It stopped with Paul’s coffin inside, draped in a union jack and stood there stationary; we could only look on in pain.”

Common themes in breaches of duty• Ineffective monitoring/supervision• An unjustified acceptance that what is in

place is both– Best practice, and– Being followed in practice

Judge’s comments in recent prosecutions of major company

• Do any of these comments ring alarm bells with you?

– “It is accepted by the defendant that he (the injured person) should have been supervised to ensure that no bad habits evolved”

– “The defendant company is very safe and is safety conscious and has co-operated in the investigation”

– “The company’s failure was a failure to supervise a trusted and experienced employee (the person who was supposed to be looking after the injured person)”

Judge’s comments

– “Defendant recognised the dangers and measures were in place to minimise the risk.”

– “How far short of the requisite standard did the company fall? Not very far”

– Monitoring was crucial as it was known that employees make mistakes. Monitoring and supervision were so important here due to the circumstances. The risk of explosion were small, but the risk to human safety was great.”

In those particular cases…..• What has been evident in each of the investigations is

that, whilst there were procedures and processes in place, the Company could not prove that it was ensuring that those procedures were being consistently followed “on the ground”

• It couldn’t do this in many cases because it recognised the competence and expertise of the individuals and accepted that each was doing what they should have been doing without sufficient monitoring

• Neither could the Company prove the effectiveness of its systems, monitoring and training because its record keeping was not adequate (through poor completion or poor retention)

Where companies often fail

• Poor training of front line workers, especially in safety critical roles

• Procedures and systems not followed by front line staff and junior management

• Poor health & safety management at the operational level

• Middle managers telling senior managers what they want to hear

• Poor communication with staff and contractors

Where companies often fail

• Inadequate monitoring of safety performance, or not proportionate to the risks being managed

• Senior management making decisions on incomplete/wrong information that affect safety (e.g. budgets and resources)

• Failing to formally close actions

• Not learning from experience

Do you have any of these Achilles heel(s)?

• Inherently hazardous business• Multi-site operations• Contractors• Multiplicity of regulatory requirements• Number of employees• Transformation projects

“We’ve always done it that way”• This is one of the most frequent sentences we hear and it is

one that chills us to the core, because

– There is a fear that bad practice evolves through handed-down “knowledge” from those most experienced employees

– This can lead, and has led, to work practices not being the same as written procedures

What happens if things go wrong?

Immediate challenges• Immediate Practical Steps

– Act quickly– Identify Inspector and Supervisor from regulator– Appoint suitable person within organisation to liaise and

coordinate– Log all documents submitted – Support / inform and expect vice versa from staff –

subject to conflict– Set up proper information sharing in your organisation– Taking early legal advice – NB conflict– Notify insurers

What to do if incident occurs

• Do you have a Critical Incident Plan which deals with major injury and fatality incidents?

• Does everyone know about it?• Essentially, if an incident occurs

• Notify• Internally• RIDDOR-HSE• Insurers• Legal team

What to do if incident occurs cont.

• Actions– Ensure preservation of evidence– Arrange team for internal investigation– Nominate contact point for HSE/Police– Nominate comms person– Nominate contact point for family– Instruct specialist lawyers ASAP

• Remember this is a criminal investigation

• Key Responsibilities of a Lawyer Post Incident• Manage Inspection Process

– Main point of contact with HSE Inspectors– Manage provision of evidence, including taking of copies– Manage interview process

• Manage documents– Preserve existing documents – Apply legal hold procedure– Restrict creation of new documents

• Manage External Lawyers– Lawyers to represent company– Independent lawyers for any individuals

• Liaise with– Management– Comms– Insurable Risk

An investigation begins (non-fatal)

• HSE inspectors have extensive powers – To enter premises– To make examinations in investigations– To direct that premises or any part of them shall be

left undisturbed– To take measurements and photographs – To take samples to dismantle test – To take possession of and detain articles– To require anyone to provide relevant information

(s.20(j))– To require the production of documents – To require facilities and assistance– Any other power necessary to assist the inspector

Who will they want to speak to?

– Witnesses to incident– Junior staff re culture– Those with a responsibility for H&S/Env’l

management or policy development– Senior managers operational and non

operational– Third parties ie sub contractors or consultants

Who will they want to speak to?• Power to question witnesses

• Section 9 CJA• Section 20 HASAWA• PACE

• Inspectors have internal guidance on questioning• What will they ask for?• What do you have to provide?

What documents might they want?

– H&S/env’l policies– Policies relating to incident– Training records and qualifications of staff– Training and risk assessment policies– Relevant risk assessments and method

statements

What docts cont.– Personnel files including disciplinary– Safe working practices– Induction documentation– Board minutes– Minutes of H&S/env’l Committee meetings– Maintenance policy– Certifications relating to equipment

Investigation (fatality)• Police have primacy• WRD Protocol

Interview under caution• HSE/Env Agency

– Do you have to?– Why would you?– Alternatives?

• Police– Obligation if under arrest

Internal investigation• Important part of the process to ensure

lessons learned

Privilege

• All reports to be at request of legal

• Report divided in to either– three sections or– two reports

• Not guaranteed to protect it but a chance

Don’t forget…• Public relations /perceptions

– At all stages– Continuity required– Press release for specific occasions?

Incident Inquest Decision to prosecute Dismissal of staff Verdict in prosecution

Inquests

When must the Coroner investigate a death? • Death is violent or unnatural (including death due to self harm)• The cause is unknown• Death in custody or state detention ( Art 2)

What is the purpose of an inquest?• Fact finding exercise

– It is not a trial / purpose is not to apportion blame but…– It may feel like it during the inquest…!

• Four key questions– Who the deceased was?– How, when and where the deceased died?– NB: Article 2 provisions – “how and in what circumstances”

• Conclusions and liability [s10(2) CJA 2009 /old rule 42]– “No conclusion shall be framed in such a way as to appear to

determine any question of:1. Criminal liability on the part of a named person, or2. Civil liability’’

What evidence can the Coroner hear?• Relevant hearsay evidence is admissible

– Oral / documentary• Coroner’s inquest is not bound by strict law of

evidence • No prohibition in legislation or rules• Cannot be excluded if relevant• Question: how much weight is given to such

evidence?

Inquest pathway• Coroner opens inquest shortly after death• Usually able to release body for funeral at that time or soon after• Coroner’s Officer collates evidence• Pre-inquest reviews (PIR) in complex cases

– Includes written / oral submissions on jury / Article 2 / witnesses / disclosure• Coroner re-opens inquest for full hearing• Coroner’s Officer swears in jury (if applicable)• Coroner hears evidence• Coroner sums up/directs jury

– Includes written / oral submissions on conclusion• Conclusion / completion of inquisition form• Death certificate issued and death registered

Inquest attendance

• Provide training to those attending

How does an inquest fit in with other investigations?

• Health and Safety Executive (HSE)– Different scope of investigation– Can run along side Coroner’s investigation – HSE can ask Coroner to suspend investigation– Memorandum of understanding

E.g. HSE discloses report to Coroner E.g. HSE as a PIP to inquest

– Prosecution prior to inquest where minimal risk of unlawful killing conclusion at inquest.

What’s the fall out from a PFD report?

• Mandatory where the evidence gives rise to a concern that circumstances exist which create a risk that other deaths will occur in the future

• In the Coroner’s opinion, action should be taken to prevent the occurrence or continuation of such circumstances, or to eliminate or reduce the risk – Para. 7 of Schedule 5 of the Act wide scope; coroner’s concern may

arise from “ANYTHING revealed by the investigation” – Para. 15 of Guidance Note 5: ‘Sometimes it may be necessary to hear

some evidence which may be relevant for purpose of making a report but not strictly relevant to outcome of the inquest’.

What’s the fall out from a PFD report?

• Recipient must respond within 56 days– Must include an action plan and timetable for implementation or

reasons why no action proposed• Adverse publicity• Impact on commercial contracts• Spot light on systemic practices (time-consuming; expensive)• Re-appearance before the same Coroner with the same problem

later?!• Supports litigation

Prosecution• Prosecutions (2014/15)

– HSE 650 cases– LA 78 cases– LA had conviction rate of 93%– HSE had conviction rate of 86%

HSE Guidance• General Enforcement Policy

• Enforcement Policy Statement requires Inspectors to identify and prosecute individuals where warranted

Prosecuting Individuals• HSE Operational Circular 130/8

– "In general, prosecuting individuals will be warranted where there are substantial failings by them, such as where they have shown wilful or reckless disregard for health and safety requirements, or there has been a deliberate act or omission that seriously imperilled their health/safety of others"

Section 7 HASAWA

• 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

Section 7 Circular Guidance• "When appropriate you should not hesitate to take action

under Section 7 against managers and supervisors who are not directors/managers subject to Section 37".

• "In general we are most likely to prosecute employees where they have shown a reckless or flagrant disregard for health and safety, and such disregard has resulted in serious risk".

• Para 5• You need to consider all the circumstances in which employees

act, particularly any responsibilities they have within the management chain, before deciding whether or not to investigte further and/or to take enforcement action under section 7. Generally therefore, your investigation should explore, and (if prosecution is the purpose) collect evidence of, what the employer has done in areas such as training, supervision, risk assessment etc.

Section 37 HASAWA

• It permits action to be taken against a director, manager, secretary or other similar officer of the company where it can be said that the offence was committed by the company with the consent of, connivance of or to have been attributable to the negligence of those persons.

Section 37 Circular Guidance• The matter was in practice clearly within the control of the

director/manager• The director/manager had personal awareness of the circumstances

surrounding or leading to the offence• The director/manager failed to take obvious steps to prevent the

offence• The director/manager had received previous advice or warnings

regarding matters relating to the offence

Section 37 Circular Guidance• The director/manager was personally responsible for matters relating

to the offence

• The individual knowingly compromised safety for personal gain or for commercial gain on behalf of the body corporate without undue pressure from the body corporate

Disciplinary

• This is also an option where the action or inaction of an individual discovered during the investigation is sufficient to justify it

• In fact it is essential that this is a consideration

Company prosecution• Health and Safety at Work Act 1974, section 2

– 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.

• Health and Safety at Work Act 1974, section 3– 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

Prosecution repercussions• Criminal conviction• Penalties

– Fine– Imprisonment – Suspended sentence

• Costs• Employment implications • Director disqualification• Guilt (psychological not just legal)

If prosecuted..

• Check the charge– Correct in law?– Supported by the evidence?– Dates of offence

If prosecuted• Check the evidence

– Admissible?• Consider the case summary/Friskies carefully

– Challenge where necessary– Detail why not accepted– Make it your version of incident

• Avoid any implication of profit above safety • Use Guidelines to supplement your position

If prosecuted• Defend or mitigate?

• Basis of Plea– Important doct– Different to any response to the case summary– Keep it clear and concise

Sentencing guidelines• Sentencing guidelines - health and safety

offences, corporate manslaughter and food safety and hygiene offences guidelines

• Environmental Offences - Definitive Guideline for the sentencing of environmental offences.

Sentencing guidelines - health and safety offences, corporate manslaughter and food safety and hygiene offences guidelines• When?

– Sentenced on or after 1 February 2016– “Regardless of the date of the offence”

• What?– Applies to health and safety and food safety

breaches and Corporate Manslaughter– The Guidance provides a series of fine ranges

for offences with starting points within each range

– There is then adjustment up or down from this starting point within the given range

– Across the whole gamut the range is from £50 to £20 million

• How?• Step 1

– Determine offence category based on culpability and RISK of harm

– Culpability has four ranges from “very high” to “low”

– Harm is based on seriousness and likelihood

Still step 1• Court then considers

– Whether the offence exposed a number of workers or members of the public to the risk of harm

– Whether the offence was a significant cause of actual harm

• If one or both of these factors apply the court must consider either moving up a harm category or substantially moving up within the category range at step two

Step 2• Starting point and category range

– the court is required to focus on the organisation’s annual turnover or equivalent to reach a starting point for a fine. The court should then consider further adjustment within the category range for aggravating and mitigating features.

Turnover• Micro: Turnover not more than £2million• Small: Turnover between £2 million and £10 million• Medium: Turnover between £10 million and £50

million• Large: £50 million and over• If an organisation's turnover very greatly exceeds the

threshold for large companies then it may be necessary to move outside the suggested range to achieve a proportionate sentence.

Very high culpability

Then….adjustment• Factors increasing seriousness include

– Previous convictions, having regard to a) the nature of the offence to which the conviction relates and its relevance to the current offence; and b) the time that has elapsed since the conviction

– Cost-cutting at the expense of safety– Deliberate concealment of illegal nature of

activity– Poor health and safety record

Mitigation • Factors reducing seriousness or reflecting mitigation

– No previous convictions or no relevant/recent convictions

– Evidence of steps taken voluntarily to remedy problem– High level of co-operation with the investigation, beyond

that which will always be expected– Good health and safety record– Effective health and safety procedures in place– Self-reporting, co-operation and acceptance of

responsibility

Step 3• Check whether the proposed fine based on

turnover is proportionate to the overall means of the offender

Step 3 continued• “The fine must reflect the seriousness of the

offence and that the court must take into account the financial circumstances of the offender.

• The level of fine should reflect the extent to which the offender fell below the required standard. The fine should meet, in a fair and proportionate way, the objectives of punishment, deterrence and the removal of gain derived through the commission of the offence; it should not be cheaper to offend than to take the appropriate precautions.”

Step 3 continued• “The fine must be sufficiently substantial to have

a real economic impact which will bring home to both management and shareholders the need to comply with health and safety legislation”

Step 4• The court should consider any wider impacts

of the fine within the organisation or on innocent third parties; such as – the fine impairs offender’s ability to make

restitution to victims;– impact of the fine on offender’s ability to

improve conditions in the organisation to comply with the law;

– impact of the fine on employment of staff, service users, customers and local economy (but not shareholders or directors).

Guidelines continued• Step 5• Consider any factors which indicate a reduction, such as

assistance to the prosecution• Step 6• Reduction for guilty pleas• Step 7• Compensation and remediation• Step 8• Totality principle• Step 9• Reasons

Other consequences•Publicity Orders•Remedial Orders•Indirect financial/commercial consequences

• Management time/Absences• Insurance premiums/uninsured losses• Tendering disadvantages• REPUTATION

Questions we need to ask ourselves

• We all know about competence and how that can be measured, but are we confident in how effective we are at monitoring that competence?

• Are we content that those employees we supervise and who we know are experienced in the tasks they undertake are not taking shortcuts?

• Are we willing to challenge behaviour or are we avoiding confrontation? If so, why?

Conclusions

• Don’t be afraid to improve, enforce and challenge procedures

Conclusions

• We’ve always done it that way !”• Don’t be wary of challenging this

statement

Conclusions

• Safety is reliant on the attitude and buy-in of all employees, including the Board

• Supervision and monitoring is, as the courts have highlighted, an essential element in an effective safety culture and environment

• Challenge behaviours, don’t fall in to complacency• There is personal responsibility as well as corporate liability

What do companies need to do?• Review health and safety policies, systems and procedures• Review all health and safety legislation and guidance

applicable to the business.• Consider industry standards - establish what benchmarks

should be applied. Legal compliance should be viewed as a minimum standard.

• Ensure risk assessments are kept completely up to date and reviewed when circumstances change.

• Determine who would be considered to fall within the definition of “senior management” and ensure their competence for that role. This may be linked to a review of health and safety training for senior management

What do companies need to do?• Review the company’s “safety culture” – not just the official

documents, policies and procedures but what happens “on the ground”, and how procedures are enforced. Effective compliance measures will be crucial.

• Ensure the Board is involved in the process and is promoting health and safety

• Protect employees by telling them about H&S issues that affect them

• Check what insurance cover is in place for criminal costs: many policies only cover defence-only costs to magistrates’ courts level. These cases can only be heard in the Crown Court.

What do companies need to do?

• Specifically review the organisation’s policies and risk assessments concerning work-related vehicle use (both company cars and private cars) as this is likely to become an increasingly hot-topic.

• Have in place an incident management plan/procedure to ensure that should a serious incident occur the investigation and any subsequent issues can be effectively managed.

• Improve record-keeping

• Ensure you have competent, specialist legal advice for health and safety matters and review your procedures for responding to investigations

What do companies need to do?

• implement a consistent and documented enforcement regime for health and safety issues across the business - what actually happens to employees when they fail to comply with health and safety rules? Does the policy state that breach of health and safety rules is considered to be gross misconduct? Is the disciplinary procedure used?

• review the company's policies on control of contractors

• are employees able to report health and safety concerns confidentially?

What do directors, senior managers & individuals need do?

• Don’t panic if you are competent in what you have been asked to do and are doing it

• But panic if you are a senior, responsible manager/director and

• … you don’t have the competence to do what you are supposed to do

• …. you are making decisions on the hoof or with incomplete information

• …. you don’t have effective practices and procedures covering all aspects of your business in place

• …. you have lost or are losing control

Relevant words

• Competence• Confidence (to challenge opposing views where

necessary)• Courage (to tell someone they are wrong or what

they are doing is wrong) • Culture (does the company have the support of the

employees?)

Contact us…

Dale Collins t +44 (0)1392 458770 e dale.collins@brownejacobson.com

Nigel Lyonst +44 (0)1392 458731 e nigel.lyons@brownejacobson.com