Whenever someone dies or is seriously injured in the workplace there are important legal and regulatory measures for the business concerned to consider. In a blog, Hickman & Rose partner Claire Wallace runs through the basics.
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It goes without saying that every death is a tragedy, but when someone dies in circumstances connected to their work – for example, an accident on the factory floor – then there are the also serious considerations for the business and the senior individuals within it.
Health and safety legislation affects all businesses, no matter what size. But the laws and requirements in this area are far from straightforward and can be difficult to fully understand.
Company directors and senior managers also have individual responsibilities in the aftermath of any death or serious incident. They need to be aware of these and should carefully contemplate the implications of their actions.
Failing to give proper consideration at an early stage to the possibility of a health and safety investigation can have serious consequences for the company, and for senior individuals working for it. These can include a criminal / regulatory investigation, enforcement action (including a possible prosecution) and possible exposure to civil claims for damages.
This blog sets out the basic steps any organisation which experiences a death or serious incident in the workplace should take in the aftermath.
RIDDOR reporting
The first responsibility for any organisation alerted to a serious incident in the workplace must, of course, be the health of the injured individual.
If the person in question has died, then the organisation should inform the family as soon as possible (if not already done by the police or other emergency service).
Shortly thereafter, the company needs to make what is known as a RIDDOR report. The Reporting of Injuries, Diseases and Dangerous Occurrence Regulations 2013 (“RIDDOR”) is clear that whenever anyone dies in the workplace, or suffers one of a list of specific injuries, the “relevant authority” must be notified “without delay”.
For most businesses the relevant authority will be the Health and Safety Executive (HSE). However, certain industries, such as mining and rail transport, have their own accident reporting authority.
The requirements of RIDDOR are that in the event of:
- an accident resulting in the death of a person;
- accidents resulting in specified injuries to workers;
- non-fatal accidents requiring hospital treatment to non-workers; and
- dangerous occurrences
then a RIDDOR report must be made within 10 days of the incident. Failure to do so is a criminal offence.
It is worth adding that most corporate insurance companies will also expect to be informed of a fatal incident within the time period set out in the policy. Failure to do so may invalidate a policy and prevent a claim being made in the future.
External investigations
After any death or serious incident, the police, HSE (or another industry regulator), or a local authority may seek to investigate what happened, with a view to taking action.
The police will generally seek to establish whether there is evidence of an offence of manslaughter (by an individual) or corporate manslaughter. The HSE (or other enforcing authority) may also seek to investigate whether any criminal breaches of health and safety legislation have occurred.
Depending on the nature of the investigation, the company and/or its directors may be obliged to comply with requests for information from an investigating body.
This may involve providing investigators with access to premises and supplying relevant documentation and materials. The request to co-operate in this way may happen swiftly and possibly within days of an incident occurring. There may be little time for a company or senior individuals to properly consider the implications of the questions being asked or the material being requested.
External investigators may also seek to interview key people at the company. For the purposes of these interviews, an individual may be interviewed either as a ‘witness’ or as a ‘suspect’. There are significant differences between the two and the legal ramifications of each are such that specialist legal advice is strongly recommended, regardless of the status of the person being interviewed. ‘Off the record’ chats with investigating bodies may also be an area of risk and should be approached with caution.
If a business itself is suspected of a criminal or regulatory offence, then it is vital to ensure the person who represents the company at interview is not themselves a suspect or a witness. There should be no conflict of interest between the individual’s own position and that of the company.
Any person who is interviewed as a suspect is likely to need legal advice separate from the organisation’s. It is often sensible for the employer to support the individual by finding them a specialist independent lawyer.
Internal Investigations
Both RIDDOR and the Management of Health and Safety at Work Regulations 1999 require employers to review their health and safety procedures in the aftermath of a fatality. To achieve this most organisations will seek to conduct their own internal investigation into the circumstances of the death.
It is vital that any such internal investigation does not clash with or obstruct an investigation carried out by an external agency, such as the police. If an external investigation is underway, the affected organisation should consider informing that investigating body before seeking to question their own staff about what happened. Doing this will help avoid any allegation that a company’s internal inquiry formed part of a ‘cover-up’ exercise.
Affected organisations should be aware that reports of any internal investigation are generally disclosable to external investigators, as well as in any future civil legal action. For these reasons it is vital to tread carefully when seeking to understand how a death happened. In some circumstances it may be possible to claim privilege over some, or all, of the product of that investigation and specialist legal advice should be sought on this prior to commencing the investigation.
While senior executives may be used to investigations into highly sensitive matters, the stakes can be far higher in the case of a death or serious injury in the workplace. An improperly run internal investigation risks exposing executives to personal legal liabilities, including potential criminal prosecution.
For these reasons and more, it is sensible to appoint independent, external professionals to undertake any internal investigation. These could include technical experts, private investigators, or lawyers. Lawyers have the advantage that it may be possible to assert legal privilege over the product of the internal investigation.
Inquests
All unexpected or unusual deaths are investigated by a coroner, who is an independent judicial officer responsible for establishing how a death happened.
A coronial investigation can vary it its extent. Some are brief. Others are much more extensive processes involving a lengthy inquest hearing in a Coroner’s Court, with a jury present.
Although the stated purpose of an inquest is not to attribute blame, there may be significant legal dangers for an organisation or senior individual faced with an inquest into a workplace death. In some cases, the evidence presented at an inquest may trigger an investigation by an enforcement body, where previously it had not felt this necessary.
Not only does evidence given in an inquest have the potential to trigger criminal proceedings, coroners can also write public reports designed to prevent future deaths. These may be highly critical of an organisation connected with a death, and reputationally damaging.
Even when there has been a decision by the police, HSE or another body not to bring a criminal prosecution in relation to a death, an inquest’s conclusion may lead to a review of that decision. Expert inquest advice and representation can be vital.
