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Health and safety laws affect businesses both big and small: from sole traders to publicly listed blue chip companies, as well as those who manage and direct them. Although it may not be immediately obvious, many health and safety investigations involve allegations of breaches criminal law.
Health and safety legislation is not always straightforward to understand. There are a wide variety of tools that law enforcement and regulators may use with a range of different powers, processes and sanctions.
At the most serious end of the spectrum – a death in the workplace – businesses may need to consider the crimes of corporate and gross negligence manslaughter. The Health and Safety at Work etc Act 1974 (HSWA) requires firms and individuals to provide a safe system of work for employees and third parties, with criminal sanctions for infringement.
Environmental health and food safety is a specialist area of health and safety law with sector-specific regulations which apply detailed requirements in particular industries.
Over the last few years, health and safety compliance has become a high priority for regulators. The penalties for breach have increased significantly both for firms, which are liable to much greater fines, and also for individuals who can face directors’ disqualification and imprisonment.
Health and safety investigations often start with a workplace accident of sufficient severity that it requires the attendance of the emergency services. An investigation may also start with an incident report made through the RIDDOR scheme, or through information and intelligence obtained by the Health and Safety Executive (HSE) or a local authority.
In the case of a serious incident, the police and the HSE will attend immediately to gather evidence. Individuals may be questioned on the spot. The HSE have powers to require information to be provided, sometimes at very short notice, and companies should seek immediate help and legal and strategic advice in those circumstances.
Often it is necessary for the investigating agency to carry out interviews under caution. This may include the directors of a company. In this situation it is critical for the company to consider carefully how to deal with such a request. Among the issues worth considering are who should represent the company at interview and what, if anything, they should say. With the right approach and good advice on how the process works, it is often possible for companies and individuals to avoid unnecessary criminal charges. There are a number of mechanisms by which an individual or organisation can engage with the HSE and find solutions which do not involve appearances before the criminal courts.
The HSE can also issue improvement notices requiring changes in work practices and prohibition notices stopping certain activities and closing down whole sites until investigators are satisfied about the standards in place. Failure to comply with these notices can also result in criminal charges.
Prosecutions can occur without notice particularly for situations deemed especially dangerous. However, with the right approach and good advice on how the process works, it is possible for firms and individuals to avoid unnecessary criminal charges. There are a number of mechanisms by which an individual or organisation can engage with the HSE and find solutions which do not involve appearances before the criminal courts.
Hickman & Rose specialise in health and safety law, especially in situations when urgent advice is required in relation to an unfolding crisis.
Our lawyers understand that clients need advice that is specific to their needs and circumstances, but also practical and commercially driven. We take pride that our service is completely bespoke: there is no “conveyor belt” approach that comes from servicing bulk contracts with insurers.
In addition to advising on the criminal and regulatory health and safety issues, our clients benefit from our expertise in representation at inquests, an area in which we have much experience. Recent work includes:
The department is led by partner Andrew Katzen, who has spent many years’ acting for clients in all aspects of professional discipline. He is a member of the Health and Safety Lawyers Association and has written articles and given presentations on health and safety issues in association with the British Safety Council. Regulatory law specialist Claire Wallace is a partner in the department.
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