Responding to serious workplace accidents

Workplace incidents resulting in fatalities, serious injuries, or dangerous occurrences often trigger criminal regulatory investigations. These investigations have the potential to lead to prosecutions of organisations, directors, managers, or other individuals. While organisations value their safety responsibilities and strive to cooperate with enforcing authorities, they also aim to safeguard against prosecution and other regulatory risks. These goals can be pursued simultaneously.

The manner in which cooperation is provided, for example, can significantly impact the final outcome. Providing voluminous records for the enforcing authority to review is one approach. Alternatively, conducting a thorough internal investigation to understand both documented and undocumented systems, and effectively explaining systems to the enforcing authority when providing relevant records may be far more effective.

Similarly, implementing "improvements" without fully comprehending the safe system of work or seeking expert opinions on complex systems or equipment may miss the point or introduce new risks. In contrast, appropriate and effective remediation can be a powerful tool in persuading an enforcing authority not to prosecute.

To form an effective response, a proper understanding of the facts, legal duties, and likely approach of the enforcing authority is essential. Organisations should seek legal advice following a serious incident and consider the following factors:

1. Reports to enforcing authorities: Serious incidents should usually be reported to relevant enforcing authorities, such as the Health and Safety Executive (HSE), the Office of Rail and Road (ORR), or Local Authorities. Failure to report as required under the Reporting of Injuries, Diseases, and Dangerous Occurrences Regulations 2013 (RIDDOR) is a criminal offence.


2. Enforcing authority investigation: Enforcing authorities determine whether to investigate potential breaches based on their enforcement policies, considering factors such as the scale of harm, seriousness of breaches, enforcement priorities, available resources, the practicality of achieving results, and public concern.


3. Powers of investigators: Health and safety inspectors have extensive powers to enter premises (but not conduct a search), examine, investigate, require answers, and access books or documents. The police, involved in cases of suspected corporate or individual manslaughter, possess arrest and search powers (an individual cannot be arrested on suspicion of corporate manslaughter).

4. Enforcement notices: Inspectors can issue improvement notices or prohibition notices to remedy health and safety breaches. Failure to comply with these notices is a criminal offence. Appeals can be made to the Employment Tribunal.


5. Internal investigation: Organisations are likely to have a duty to conduct their own investigations, complying with the Management of Health and Safety at Work Regulations 1999. The findings of internal investigations are disclosable to enforcing authorities unless protected by legal professional privilege.


6. Criminal offences: Breaching general duties under the Health and Safety at Work etc. Act 1974 (HSWA) is a criminal offence. Employers have personal and non-delegable duties, and even if a safe system of work is in place, employee failure can still put the employer at fault. Senior officers can be held liable for organisational conduct.


7. The approach of enforcing authorities: Enforcing authorities often attribute incidents to management, organisational, or planning failures rather than individual error. Police investigations focus on gross negligence manslaughter by an individual and the role of senior management in contributing to organisational failure in corporate manslaughter cases.


8. Timing: Building a defence early is crucial. Organisations should conduct thorough internal investigations, respond effectively to information requests, and consider appropriate remedial actions. Setting out the effectiveness of systems, if need be with expert evidence, can help avoid prosecution.


9. Public interest: Prosecution decisions consider not only breaches of legislation but also whether prosecution is in the public interest. The HSE considers various factors, including the gravity of the offence, harm caused, compliance history, and obstructive behaviour.


10. Proactive approach: Proactive engagement, particularly for less serious incidents, can help avoid prosecution. Even in cases where prosecution is likely, a proactive approach can mitigate outcomes and minimise harm.


Tom McNeill is partner and health and safety regulatory specialist at BCL Solicitors. For more information, visit www.bcl.com