Don't Panic — Responding to a Serious Accident in Your Business

Show notes

Listen to our top tips on managing serious workplace incidents in the second episode of Weightmans' Safety Season podcast, featuring expert Anna Naylor.

James Muller: Hello, and welcome to the second of Weightmans Safety Season of podcasts.

James: Today, your speaker is Anna Naylor, who's going to be talking you through, don't panic responding to a serious accident in your business.

James: Please do remember to leave any questions you have in the comments. As in our eighth and final episode, we will be answering some of your questions from throughout the series.

James: Over to Anna.

Anna Naylor: Welcome to the second podcast in the series of Health and Safety Podcasts.

Anna: So my name is Anna Naylor, and I'm a partner in the regulatory team at Weightmans.

Anna: I specialise in assisting clients from a broad range of different sectors when they experience serious workplace incidents.

Anna: These incidents can range from multifatality accidents to serious near miss incidents, which have the potential to cause significant adverse consequences.

Anna: So, a major health and safety incident can be extremely challenging time for any organisation.

Anna: The steps taken by an organisation in those first crucial 48 hours can have a really significant impact on the way that the incident is perceived by the regulators and the public at large.

Anna: It's therefore essential really that site managers know who they should escalate a serious health and safety incident to and who they can contact for specialist legal advice.

Anna: The value of the advice and support of an experience and safety lawyer in the immediate aftermath, of an incident can be considerable.

Anna: The first question I will often ask clients, after they've had a serious incident is whether or not they have a crisis management plan Crisis Management plans outline the key steps be taken by an organisation in response to a serious incident.

Anna: Plans should identify the risks and seek to minimise that the harm which results from an incident there should be a focus on the top priorities and organisations should seek to ensure smooth and rapid internal and external communication takes place after an incident.

Anna: In the crisis management, plan, there should be details included about the roles and responsibilities of team members involved in the crisis.

Anna: The chain of command should be clear and there should also be specific protocols which are flexible enough to respond to the crisis as it unfolds, but also prescriptive enough for individuals to be able to closely follow.

Anna: Before a crisis takes place, staff should ideally receive trading on the crisis management plan so that they can effectively quickly respond and deploy the necessary resources in good time.

Anna: One of the factors that poses the biggest threat to an organisation in the aftermath of a serious incident is how well the regulatory investigation is managed.

Anna: The HSE, the health and safety executive, and local authority have a duty to investigate health and safety incidents.

Anna: But they don't investigate all accidents, which they're made aware of. They tend to focus on the most serious cases of workplace injury and ill health.

Anna: Where there's sadly been a fatality, the police will take the lead role in investigating the incident under the work related deaths protocol.

Anna: It can't be underestimated how important it is to establish an early point who is leading the investigation in the initial chaos, which can flow from a serious and unexpected event. There can be confusion arising with a number of different emergency personnel on-site and no one individual having identified themselves as being in charge of the investigation.

Anna: As I'll go on to explain later, there are some differences in terms of the powers of the police agency and local authority environmental health officers. And this is yet another reason to be clear about who is actually lead in the investigation. In terms of how the police, HSE, and local authority, environmental health officers will come to learn of an incident This will very much depend on whether emergency services are called to attend the scene of the incident or whether a later report is made.

Anna: Some workplace incidents, occupational diseases, and dangerous occurrences require reporting under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013, or RIDDOR as it's more widely known.

Anna: Employees have a duty to report the death of any worker or member of the public if the death arises from a work related incident.

Anna: Which can include a physical act of violence to a worker.

Anna: There are also certain injuries which must be reported This includes things like fractures, except breaks to fingers and toes, amputations, crush injuries, serious burns and that's classed as burns which cover more than ten percent of the body.

Anna: Loss of consciousness caused by a head injury or asphyxia or other injuries arising from working in enclosed spaces.

Anna: Importantly, a report must also be made if a worker is away from work or unable to perform their usual duties for more than seven consecutive days.

Anna: The seven day period when you're calculating that includes the day of the incident but not weekends or rest days.

Anna: So that's an important thing to bear in mind.

Anna: One of the main piece of advice I will usually give to organisations after a serious incident is to appoint a single point of contact. From within the business.

Anna: It's a good idea to establish a protocol with the investigating authority so that all dealings are through a reliable single point of contact.

Anna: There've been a number of cases that I've been involved in where there is fusion about who is doing what within an organisation which leads to regulatory requests not being followed up properly.

Anna: Or uncertainty about what information has been shared with the regulator.

Anna: By channelling everything through one point of contact, there is greater consistency and clarity.

Anna: Another important matter is that a detailed incident log should be maintained by a nominated individual, and consideration should also be given to having a communications team to deal with things like media reporting and also reports made internally to the workforce and also communication with any victims involved in the incident or their families.

Anna: In the age of social media, organisations have very little time now to respond to a managed adverse publicity with damaging content being immediately available for all to view on the worldwide stage.

Anna: It's advisable that this is carefully managed that there's a media strategy immediately in place to avoid long term reputational harm.

Anna: So looking at the HSE and local authorities powers, the HSE and local authority have specific powers under Section twenty of the Health and Safety at Work Act to enter premises at any reasonable time or where a situation is dangerous, they can enter premises at any time for the purposes of conducting an investigation.

Anna: So this is slightly different to the powers that the police have and the need to obtain warrants, etcetera. In terms of preparing for a regulatory visit, where possible all employees should be briefed in advance that there's going to be a regulator on-site and preparations should be made for the possibility of the visit turning into a more general site inspection.

Anna: I've been involved in cases where an incident might take place on you know, a a machine in a part of a particular site and the HSE turn it in. They visit into a more general site wide walk round, where they potentially identify other issues, which of them raise at a later stage. So it's important that across the site everybody knows that the regulator is going to be on-site.

Anna: And that obviously everything is to scratch in terms of health and safety standards. Another factor to bear in mind is whether or not the regulator should be accompanied around the site. It's our usual advice that they are, not least because of health and safety reasons and familiarity with the site.

Anna: But this can also be important because obviously there can be information fed back to the management team about the areas that the HSE are focusing on all the local authority or indeed the police.

Anna: A record should be kept to the visit who attended.

Anna: How long they were on-site for the locations they visited.

Anna: Any evidence they collated, documents taken, etcetera.

Anna: And if possible, provide a discreet location for the attending HSCO local authority, environmental health officers or the police to operate away from that's sort of separate from the rest of your input. So, what will a regulator do once they're on-site after an incident has come to their attention?

Anna: Well, firstly, they'll assess the safety of the scene and restrict access, and where necessary take prohibitive action, if required.

Anna: This could result in large areas of a site potentially being taped off and inaccessible for a considerable period of time while the investigations get underway.

Anna: The HSE may need assistance from individuals on-site who have specialist knowledge of the equipment and materials involved in order to help with their assessment of scene safety.

Anna: It's important that there's good communication with the regulator about any concerns that they have and how the organisation might be able to assist.

Anna: This could save time and lead to an impact on how far reaching the consequences of the instant are in relation to business option and obviously other factors.

Anna: The inspectors want to gather information about your organisation generally and specifically in regard to the incident itself.

Anna: Care should be taken in any discussions with the regulator as records will be maintained of information shared and this could be used at a later stage.

Anna: However, individuals liaising with the regulator should be cooperative.

Anna: It's a specific offense to obstruct HSE inspector, and there've been prosecutions of individuals failing to provide information about possible safety risks, for example. So, it's always important to be cooperative with the HSE, but also to be aware of the scope of their powers.

Anna: In terms of gather gathering documentary evidence, the investigating authority has powers to take copies of all documents except those that are legally privileged.

Anna: Documents should therefore be made available unless there are valid re legal reasons for not disclosing them.

Anna: And therefore, great care should be taken about written communication in the aftermath of an incident.

Anna: It's a good idea to offer copies and not the originals.

Anna: If at all possible, and to keep a log or a separate copy of everything handed over through the single point of contact.

Anna: In today's modern world with most documents being stored electronically, it's often the case that the regulator will ask for key documents to be printed or emailed whilst they're on-site with a follow-up list of requests for information to follow.

Anna: In terms of equipment and articles involved in an incident, the regulator has wide powers to inspect, remove, and photograph any relevant equipment involved in an incident.

Anna: And, obviously, full cooperation should be provided.

Anna: The inspector will take statements from all key individuals involved.

Anna: It's unlikely that this will happen in the immediate aftermath of the incident. We usually experience a period time where the information gathering stage is undertaken, and then requests will be made for interviews with a list of witnesses identified by the regulator.

Anna: There are different types of statements and interviews that can be conducted. There are voluntary witness statements, which are also referred to as Section 9 statements.

Anna: These are statements provided by employees and others in relation to the incident. Not necessarily eyewitnesses to an incident. It could be individuals who hold relevant information for example, about training that's provided on a particular piece of equipment.

Anna: There are also compelled interviews conducted by regulators, and these are referred to as Section 20 interviews.

Anna: So, the HSE and local authority or environmental health officers have specific powers to compel answers to be provided to their questions.

Anna: So obviously with a voluntary witness statement or a Section 9 statement, you don't have to cooperate with the HSE and provide that information, but the HSE and local authority, environmental health officers do have this power to specifically compel answers to be given to specific questions.

Anna: There are certain protections provided in respect of the individual who is giving answers to those questions in that any answers they give cannot be used against them in a later prosecution. They could, of course, be used against somebody else or the organisation itself.

Anna: And finally, there are interviews under caution, which are also referred to as PACE interviews.

Anna: PACE interviews are conducted in interview conditions. They are tape recorded or videoed and they usually take place either at a police station or at the HSE's premises or local authority premises.

Anna: These are a formal measure to obtain information and it is highly advisable that if an invitation is received to attend an interview and a caution that you take specific legal advice in relation to that.

Anna: Interviews under caution take place where an individual or an organisation is suspected of committing an offense.

Anna: In summary, it's prudent to take legal advice on the golden rules around giving evidence either through a witness statement or through a formal interview.

Anna: There are other alternative options that may be available and these should be a blurred with your legal advisors.

Anna: And on a final note, it's important to reiterate that there's no such thing as an off the record discussion with the investigating authorities.

Anna: Everything potentially can be record. In terms of enforcement notices while the HSE or local authority are on-site, they can issue what are called prohibition notices and improvement notices where health and safety breaches are identified.

Anna: And it's an offense to fail to comply with these notices, but they can be appealed. There are strict time limits. So again, if you receive a prohibition or improvement notice, you should take specific legal advice in relation to this.

Anna: Prohibition notices may be served if an inspector is of the opinion that an activity which is being carried on or likely to be carried on will involve the risk of serious personal injury.

Anna: The notice should be served on the person or the organisation who has control of that particular activity.

Anna: The prohibition remains in force until action has been taken to remedy the matters giving rise to the notice.

Anna: If a prohibition notice is appealed, it is not automatically suspended and therefore should be complied with until the appeal has been heard to avoid an offense being committed.

Anna: Improvement notices are served where inspectors of the opinion that a person is contravening or has contravened health and safety legislation, and the notice itself require the remedying of that particular contravention within a set period of time. This set period of time should not be less than 21 days from the date of the notice.

Anna: Unlike a prohibition notice, if an appeal is lodged against an improvement notice, The improvement notice will be suspended until the appeal has either been heard or withdrawn.

Anna: Inspectors will consider the risks involved and the specific circumstances in order to determine the type of notice to serve.

Anna: It can also sometimes be possible to take swift action to avoid service of any notice in the first place. And this is important when considering that enforcement notices are usually matters which have to be declared for example, when tendering for work or possibly when renewing insurance policies.

Anna: The HSE can charge for their time spent investigating incidents where material breaches of health and safety law are identified.

Anna: If a material breach is identified during a site inspection, a fee for intervention invoice will usually follow the service of a notification of contravention.

Anna: Fee for intervention invoices can be queried or disputed and it's important to check invoices carefully to make sure that they are correct.

Anna: A notification of contravention will predate the fee for intervention invoice usually and specify why it's felt that there's been a material breach of the law It's therefore critical to ensure that a notification of contravention if received is studied carefully and challenged if appropriate.

Anna: In terms of internal investigations, employers have a duty to carry out their own investigation for the benefit of learning lessons and to revisit important documents such as risk assessments.

Anna: Legal advice should be sought about whether this internal investigation can or should be covered by legal privilege.

Anna: Legal privilege could be a podcast in itself, but it's a useful legal principle which can help an organisation to fact find and collate information after an incident so that legal advice can be given on matters such as the prospects of a civil claim resulting or the likelihood of a criminal prosecution.

Anna: When preparing internal investigation reports, care should be taken with the language used given the wide potential audience who may read that report in the future.

Anna: Speculation and opinion should definitely be avoided. And instead the primary focus should be on the facts of the incident.

Anna: The company should take witness statements from any individuals whose evidence may assist the investigation team in Edwin.

Anna: I'll repeat that. The company should take witness statements from any individuals whose evidence may assist the investigation team in identifying what has happened.

Anna: This includes any individuals who have been spoke to by the regulator.

Anna: All relevant documents, so for example, training records, risk assessments, method statements, should be collated and photographs should be taken where relevant.

Anna: And version control is another really important thing to bear in mind because documents can be overwritten on systems.

Anna: So, it's important to save current versions of particular documents so that in a year or two's time, those can be retrieved and used as part of the investigation if necessary.

Anna: Finally, within your internal investigation, it's important to consider the involvement of trade unions and how best to work with them. And also the wider workforce and how any lessons learned are going to be rolled out and communicated.

Anna: On a final note, managing a serious incident is something that falls outside of the comfort zone of most organisations.

Anna: Especially those who rarely experience any accidents in the workplace.

Anna: It pays to be as prepared as possible for a serious incident through carefully prepared and tested crisis management plans and having trained staff who are clear about the action required when the worst case scenario does arise.

Anna: Thank you very much for listening to this podcast.

James: Thank you for that, Anna, and thank you all for listening to Weightmans safety season of podcasts.

James: The next podcast will be the first of a two parter on inquests. So, make sure not to miss that available from 12 February.