Practitioner Veronica Adlam gives a personal account of what happens when someone dies in a workplace incident, and shares the lessons she learnt from the process.
Since 2000 I have been employed by Hertfordshire Fire and Rescue Service (HFRS) as its health and safety manager and, as a health and safety professional, I am committed to providing the Service with the right advice and guidance to ensure it is complying with its responsibilities under existing health and safety legislation.
I qualified in health and safety nearly 20 years ago and became a chartered member of IOSH in 2005. I enjoy my work and the challenges each new day brings. My original aim in committing this story to print was to provide a guide for my peers on carrying out an investigation into a workplace death but it also turned out to be a cathartic exercise.
I wanted to warn health and safety professionals that the process is highly emotionally charged — guilt, anger, compassion, empathy, frustration, relief all come into it — and so requires all your determination and energy. On the plus side, you will be rewarded with considerable peer support, refreshingly revealing moments of good practice and the steepest learning curve you have ever experienced!
By their nature, incidents and accidents are unpredictable but they are not necessarily unforeseeable. However, no health and safety professional ever expects to wake up to a telephone call, as I did in February 2005, imparting the dreaded news that two of your colleagues have died while doing their job.
It is shocking in the extreme. A wave of guilt comes over you as you question whether you have done your own job thoroughly enough: “Could I have prevented this by being more vociferous? Did I miss something crucial?” I am not known for being timid or shy (although I hate doing presentations to large numbers of people!) but I speak my mind and I am certainly prepared to challenge people. In hindsight, and given the restrictions on public funds as well as conflicting priorities, I can say I fulfilled my role and the organisation endeavoured to comply with its duties.
The Police
A workplace death will inevitably involve the HSE but also, more immediately, the Police. They will investigate to ascertain if a serious criminal offence has been committed and will ensure that there is no ‘foul play’, or suspicious circumstances. The Police will work closely with the HSE, and cooperation is expected from the deceased’s employer.
Who informs the Police? In some cases, the paramedic service is required to report to the Police any industrial accident that involves a fatality and/or suspicious circumstances. In my case, the Police were already in attendance in relation to the evacuation of the block of flats that was on fire. The cause of the fire that resulted in three deaths — one resident, as well as the two fire-fighters, died — was subsequently subject to a criminal investigation.
The Police control the crime scene. Evidence will be collected by them and impounded as exhibits. The HSE and Police will liaise on this matter; in our case they also liaised with our Fire Investigation Team to assist their Scene of Crime Officers.
The Police will expect you to provide experts from your organisation to explain the workings of equipment, processes and procedures. Any internal/organisational jargon will need to be explained fully. You will certainly be expected to provide all the information, documentation, records and personnel that the Police may require to enable them to progress with their criminal investigation. The more time you spend providing background information, the simpler and smoother the early stages of the criminal investigation will be.
Remember that some documents are privileged from disclosure, so it is important to take legal advice from the very start about which documents will fall into this category.
Before you, as a professional health and safety advisor, can start your own investigation, you will need to dedicate your time to responding to the requirements of the Police through the management structure of your organisation. This is not optional.
The coroner and inquest
The coroner has the right to request all the information they need to complete their findings as to the cause of death. The inquest will usually be opened and immediately adjourned, with interim reports from the Police and in anticipation of further reports from the HSE, as well as your organisation’s own investigation report. It can take several months, sometimes up to a year, or more, for the inquest to be re-opened and convened.
The regulator
Of course, a death that results from a work accident must be reported to the Health and Safety Executive, under RIDDOR 1995. If the incident occurs outside of ‘office hours’ a duty HSE inspector will be called out, or it may be passed on to your organisation’s regular inspector, who will be more familiar with your business. The HSE will not take over the investigation until the Police have handed it over.
The HSE will tell you what they need and may decide to interview witnesses themselves. In public organisations, there are resources and people available to carry out detailed accident investigations. The HSE is generally happy to allow such organisations to carry out their own investigations and present the final report to the regulator, who will then ascertain whether it is thorough and objective.
The HSE wants organisations to learn from their mistakes and the only way to do that that is to be open, honest and probing. The regulator will want to set up and agree meetings at regular intervals to review the progress of the internal investigation. The presumption in health and safety law is that you are guilty until proved innocent, and the aim of the investigation is to establish if all reasonable action was taken to prevent such an accident occurring. Now, of course, the HSE will also be looking for breaches with a view to prosecuting and/or serving enforcement and/or FFI notices.
Interviews
Police — You may be interviewed yourself. Members of staff will be interviewed as witnesses to the incident that led to the workplace fatality. They need to be supported both before and after the event.
HSE — Under Section 20 of the HSWA 1974 HSE inspectors have powers to interview employees as part of their investigation into a workplace death and can require employees to give any information to answer questions posed — whether in writing or orally. The employees will be required to sign a declaration of the truth of their answers. A refusal to answer questions put under s20 is an offence under s33(1)(e) HSWA 1974.
However, under Section 28, no information obtained under this power will be disclosed without the consent of the person but this does not prevent disclosure to the HSE, a government department, or any other enforcing authority. No answer given in response to a s20 question is admissible against that person, or a spouse (but could be used against someone else e.g. the employer).
In a civil action for damages, either the plaintiff or the defendant may request information from an inspector, but they cannot get s20 material unless the person who made the statement consents.
Internal — Ideally, witness statements or contemporaneous notes will have been gathered from every individual who was involved. These should be gathered under the protection of legal privilege (see below). Further information will be needed to confirm actions and verify evidence. Once the Police have confirmed they are not taking any action the organisation itself may wish to interview those involved to confirm evidence and actions, or elaborate, where necessary. (NB There is no obligation to wait — best practice is to gather evidence without delay.) This can provide an opportunity for the union/employee representatives to incorporate their questions. Once again, the protocols should be agreed beforehand.
Establishing an investigation team
But don’t wait around — your employer must immediately appoint a solid investigation team. These people need to be released from their day-to-day job to concentrate solely on the demands of the Police, the HSE and the senior management involved in the practical matters of the tragedy. It goes without saying that a key member of the team should be the health and safety advisor/manager.
Personnel who are experts in the operational aspects of the work during which the accident occurred are also crucial. This is a sensitive issue, however, as they are likely to have known and worked alongside the deceased. Administrative support is a must; the amount of paperwork that will be generated is colossal, so filing systems for this and the evidence gathered, correspondence, interviews, statements, etc. need to be set up immediately. Documents likely to attract legal privilege should be kept separate from other, disclosable material.
Employee representatives (from recognised trades unions) may join the investigation but in the event a conflict of interest arises at some stage of the investigation clear protocols need to be established from day one. To ensure that the investigation is given credence and receives support from all levels of the organisation it must be headed by a member of the senior management team. The HSE will expect senior management to be fully advised and supportive.
Confidentiality is essential, so lockable office accommodation must be made available, together with reliable IT systems and someone with excellent IT skills and record-management abilities. Other equipment that may be useful includes radios, televisions, DVD players, digital tape recorders and dictation machines. Filing facilities (extensive!) and secure storage for impounded items will also be required. Bear in mind that documents and evidence may need to be stored for some years pending court cases and claims.
Legal and other advice
Involve your solicitors from the start, and ideally before any potentially sensitive documents are created. They need to advise the organisation on disclosure of documented and spoken information, liaison with families and relatives, liaison with employee/trades-union representatives, preparing staff for attendance at court, records management, etc.
Your organisation’s insurers will want to know the circumstances of the death(s) in order to confirm policy cover, investigate liability, etc. Civil processes may follow at a later stage, with claims for compensation.
If your organisation has experts in the fields of data protection, freedom of information and/or disclosure, use them! These areas are a minefield to someone who doesn’t know the ins and outs of existing legislation. You do not want to get caught out disclosing personal information to third parties who have no legal right to it. These include the press, union representatives who are endeavouring to carry out their own investigation, or other employees.
You may wish to consider a press statement, or at least decide how to manage communication with the media.
Employee representatives
Joint investigations with trades unions can be useful to avoid the duplication of effort. Involve the unions from the start but establish accepted protocols for communication and liaison.
The Police will not want the internal politics of the organisation hindering their criminal investigation. However, at some stage there may be a conflict of interest between the organisation and the employee representatives. This may be as a result of pending civil action being taken by the union on behalf of relatives, or independently.
All the information provided for the representative bodies needs to be approved and logged, and realistic timescales agreed.
My personal experience with the appointed trade-union investigation team was challenging and unnecessarily stressful. They demanded information from the start, and promptly. This was a difficult balancing act and we needed guidance on boundaries. We had, and have, a good relationship with our union representatives but the investigation team included regional representatives, who did not appear to appreciate fully that this was a very emotional time for the local rep.
Relatives and colleagues
The Police will appoint Family Liaison Officers, who can manage the delicate process of informing relatives and next of kin of the death of their loved one. However, the employer should also appoint senior officers with responsibility for maintaining contact with the family via the FLOs and ensure they are kept informed of progress with the investigation.
As for the deceased’s colleagues, the occupational health department, if there is one, will play an immediate role in supporting those involved in, or affected by the incident. These employees will be interviewed as witnesses by the Police but will play a valuable part in the investigation. They will be asked to go over the event a number of times and this may cause distress and thus the potential for post-traumatic stress. Confidential counselling support should be provided and its availability publicised throughout the organisation — it is surprising how far-reaching the effects of a workplace death can be.
As the health and safety practitioner, do not underestimate the effect it will have on your personal life, or the stress and emotional turmoil you will go through. Activity will be intense in the early weeks and months; the Police, HSE, senior management and other colleagues will all be bidding for your attention. You will analyse things over and over again such that you may not be able to achieve closure in the same way as others in the organisation.
You will personally own it — that is why you have gone into this profession. This isn’t a bad thing; it spurs you on. Your professional survival depends on the successful conclusion of the investigation, the ultimate aim of which is to prevent this happening again. People want to know what happened and why as soon as possible, but you must resist the urge to rush every task — you will run out of energy and risk producing a poor result.
Senior officers/managers may appear to be coping but they may have mixed feelings about their role and responsibility within the organisation, potentially feeling threatened and vulnerable. As a result, you may not get the pastoral care you would expect from your manager, so peer support is invaluable, as is that of partners, friends and family. Be careful, however, not to breach confidentiality and guard against disclosing facts.
In my case, my husband is a Police detective and his personal skills were a great help to me right from the start. His guidance on basic investigative techniques was invaluable, enabling me to set up administrative systems which, although simple, worked.
What, why, who, where, when?
Rest assured there is a wealth of information and guidance available from the HSE to assist you in the investigation process but this, in itself, can be overwhelming. Ultimately, there is no better support than that provided by a peer who has (unfortunately) experienced the same situation. They can coach and guide in a sympathetic and independent way, providing a much needed ear when that phone call comes.
As a result of this experience I collated information throughout and produced a practical guide for me and my management team — just in case it happened again. Which, sadly, it did, in 2007, when a Hertfordshire Watch Commander was killed while working at a car fire on a motorway.
The guide is available from the Chief Fire Officers’ Association as a national document for use by all Fire and Rescue Services — ‘just in case’ that phone call comes.1
An experience like this will never leave you; my thoughts are always with the relatives, loved ones and work colleagues of those fire-fighters who lost their lives doing their job.
Reference
1 Death in the workplace — www.cfoa.org.uk/15542
Veronica Adlam is health and safety manager with Hertfordshire Fire and Rescue Service.
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Practitioner Veronica Adlam gives a personal account of what happens when someone dies in a workplace incident, and shares the lessons she learnt from the process.