The regulatory system can seem like a jungle to businesses that covet a clear understanding of how they can work effectively with different inspectorates. Alison Gray and Anna Hart set out what organisations should bear in mind if they want to get the best out of their relationships with regulators.
There have been almost 500 new acts of parliament and literally thousands of pieces of new regulation introduced in England and Wales over the last 10 years, as well as an increasing number of public authorities with enforcement powers.
Health and safety and environmental matters continue to be among the most heavily regulated. However, even within these specific areas, there exists a number of regulators that businesses may be required to work alongside, each with a different style of working and a different range of powers and regulatory functions. How do the roles and enforcement powers of these various bodies differ and what can businesses do to build a positive working relationship with each of them?
The Police Service
Since the introduction of the Corporate Manslaughter and Corporate Homicide Act 2007, the Police Service has been increasingly involved in investigating workplace accidents and now leads investigations relating to all fatal accidents, working alongside the HSE.
Any business that has been the subject of a Police-led health and safety investigation will know that the Police approach can be somewhat different to that taken by the HSE. Unlike many other regulators, the role of the Police Service is confined solely to that of the investigator – they are not required to prosecute the cases they investigate; nor do they have a role in providing proactive guidance and advice on safety issues. These functions are held by the Crown Prosecution Service and HSE, respectively. This means that the Police role is to gather all relevant evidence as thoroughly and promptly as possible, and this is very much reflected in the way in which the Police handle an investigation.
Officers will be in attendance at the scene of an accident very quickly, usually within a couple of hours, and will take control of the area as a crime scene. This means they can seize any relevant items, such as pieces of machinery, tools, or documents in the immediate area and take any photographs and samples that might assist the investigation.
The next stage in the investigation will involve officers speaking to witnesses. They will be keen to take witness statements as promptly as possible after the incident to ensure the evidence provided is as full and accurate as possible. Employees can become very nervous about police officers being on site and asking questions, particularly as statements will often be taken within hours of the incident occurring and before the employee has had a chance to seek any legal advice about the investigation process and how their evidence could be later used.
The Police Service is the only regulator that has a power to arrest individuals that they reasonably believe may have committed an offence. However, the power of arrest is limited and should only be used in circumstances where it is considered absolutely necessary, usually to interview a suspect who may not otherwise agree to attend an interview, or who may fail to cooperate with the investigation. If the subject of the investigation is an organisation suspected of corporate manslaughter, the Police Service has no power to arrest a director or senior officer of the organisation, unless they also suspect that individual of committing a separate offence, such as gross negligence manslaughter.
A little cooperation and assistance will go a long way towards building a good working relationship with police officers. The Police Service is used to dealing with suspects, and even witnesses, who refuse to cooperate and do whatever they can to avoid investigation. Officers are therefore usually impressed if a business is prepared to assist by providing information about the incident and its wider working practices, and if they go that extra mile in providing practical assistance with issues such as arranging witness interviews with employees.
However, businesses should take care not to be lured into a false sense of security. If the police investigation reaches the stage of conducting an interview under caution, the interview will be held in the custody suite of a police station. With the interviewee “checked in” on arrival, and possibly searched, the process can be a very intimidating experience – one that is not made any easier by the police style of questioning suspects, which is somewhat more direct than that of the HSE. Interviewees can expect to face difficult accusations and may be placed under some pressure to explain their previous actions.
Health & Safety Executive
In complete contrast to the very specific investigatory role held by the Police, the HSE has a very wide remit of responsibility. This includes providing advice and guidance for industry (both in a general context, such as codes of practice, briefing notes and press releases, and, where appropriate, for individual organisations dealing with specific problems), as well as investigating and prosecuting potential breaches of the law.
There is a huge number of specific health and safety regulations that the HSE is responsible for enforcing, so it is, perhaps, unsurprising that an HSE-led investigation can take many months, or even years to complete while inspectors gather all relevant evidence and consider the many technical and regulatory breaches that may or may not be proved by the evidence gathered.
Although HSE inspectors do not have a power of arrest, they do possess alternative powers, which can be equally effective. Whereas the Police cannot force an interviewee to answer any questions put to him, even if the suspect is under arrest and being interviewed under caution, the HSE can use powers under section 20 of the HSWA 1974 to compel an interviewee to answer questions. This power can be used irrespective of whether the interviewee is being spoken to in their personal capacity, or as a representative of an organisation.
The second power open to the HSE (which, again, the Police Service does not possess) is the discretion to serve Improvement or Prohibition Notices in situations where an inspector believes there is an ongoing risk of personal injury. Notices can be used to stop any particular activity, such as use of a specific machine, or working practice. The impact of being served with an enforcement notice can be devastating, as it can stop a business in its tracks by forcing it to suspend usual operations, impacting on commercial arrangements with customers and suppliers. No business wants to be in the position where it has to explain to customers that it cannot honour an order because there has been a safety incident at one of its sites.
Perhaps the most important difference between the Police and the HSE, from the perspective of employers, is that organisations are required to work with the HSE on an ongoing basis, irrespective of any enforcement proceedings that may be ongoing, or recently concluded. By contrast, employers will have no ongoing relationship with the Police in relation to safety matters, and almost certainly not with the same officers after an investigation or prosecution has been concluded.
This ongoing relationship has a very significant impact on how employers can effectively manage their relationship with the HSE. Within the heat of a regulatory investigation it can be frustrating if a company feels the HSE inspector does not fully understand the efforts being made to comply with regulations, or if the inspector is unable to provide definitive advice on what steps it should be taking to ensure compliance with an enforcement notice.
However, it is important to remain calm and work towards building a constructive and professional relationship with the Executive. For example, if an HSE inspector indicates that they feel it is necessary to issue a Prohibition Notice in respect of an unguarded piece of machinery, it may be far more effective for the employer to negotiate with the HSE to find a mutually acceptable solution to the issue and avoid service of the notice altogether, rather than wait until the notice is served and then issue an appeal against it.
HSE inspectors have the discretion to broaden their investigation beyond a particular incident that has occurred, or to conduct ad-hoc inspections on any premises, which could include other premises operated by a business already under investigation. The most effective way that an organisation can limit the amount of intervention by the HSE in their business is to demonstrate that it takes safety issues very seriously and to invoke confidence in the HSE inspector that safety matters will be managed effectively in future. Effective communication with local inspectors is invaluable to building a positive ongoing working relationship between employers and the HSE.
Environment Agency
The Environment Agency has a similar broad role to the HSE, and provides industry advice and guidance, issues environmental permits, authorises businesses to operate specified sites and activities, investigates potential breaches of legislation, and prosecutes for offences. Like the HSE, the Environment Agency covers a vast range of regulatory topics, many of which can be complicated and time-consuming. These include packaging-waste requirements, water-quality issues, control of radioactive substances, and hazardous waste.
In addition to enforcement via criminal prosecution, the Agency is to become one of the first regulators to make use of new civil sanctions set out in the Regulatory Enforcement and Sanctions Act (RESA) 2008, and granted to it through the Environmental Civil Sanctions (England) Order 2010.
The aim of the RESA is to provide greater certainty for businesses and reduce the regulatory burden on the regulator. This will be achieved by allowing regulators to use new civil penalties, such as fixed or variable monetary penalties and various forms of notices, including Stop Notices and Compliance Notices (see News, SHP February 2010), to ensure compliance with the law. It is likely that civil penalties will only be used for minor offences, and criminal prosecution will continue to be appropriate for more serious breaches. Following consultation, the Environment Agency is planning to use the new sanctions by the autumn.
Introduction of civil sanctions for environmental offences will undoubtedly have an impact on the relationship between the Agency and businesses. On the one hand, it makes the regulatory system more flexible, as businesses that can demonstrate to the regulator that a relatively minor breach occurred as a one-off incident, or as an understandable error, may escape with a civil sanction rather than a prosecution. On the other hand, civil sanctions may be used to address issues that would not previously have warranted criminal proceedings, meaning that businesses will be more likely to face fines and regulatory enforcement notices.
Either way, the use of civil sanctions is likely to mean that some enforcement decisions will be made more quickly than is currently the case, and businesses will have less time to present information to the Agency. Prompt presentation of evidence of previous good environmental performance (and proactive measures to prevent a similar incident occurring in future) will give businesses the best possible chance of avoiding any further enforcement action, or being served with a civil, rather than a criminal, penalty.
Fire Service
Local Fire Services have yet another combination of powers and responsibilities. Like the HSE and Environment Agency, the local Fire Service is likely to have some form of ongoing contact with employers in the area to ensure that appropriate emergency procedures are maintained, and to conduct routine fire safety audits of premises. As part of this function, the Fire Service may provide employers with advice on best practice for compliance with the Regulatory Reform (Fire Safety) Order 2005, such as information on conducting a fire risk assessment and running training courses for fire wardens.
The role of the Fire Service is unique because fire officers are involved in every stage of an incident – from emergency response and investigating the cause of an incident, through to decisions on enforcement and prosecution proceedings. Fire officers have a unique responsibility at the scene of a fire because they are charged with making the building safe and deciding at what point it is safe to allow occupants to re-enter the building.
If a premises presents a fire risk it will be members of the Fire Service that will be called upon to deal with the fire and place themselves at considerable risk. It is unsurprising then, that the Service takes a very robust approach to ensuring compliance with fire safety regulations and does not wait until a fire has occurred before seeking to take enforcement action.
The Fire Service is also much more heavily involved in building control and planning issues than other regulators. Fire safety forms a key aspect of planning decisions and building regulation approval at the time that a newly constructed building is ready for occupation. This means that even without having to take any enforcement action under the Order, the decisions of the Fire Service can greatly impact on businesses occupying premises.
Although the Fire Service has broad enforcement powers, including service of enforcement notices and taking prosecutions in the Crown Court, it is often very willing to provide proactive advice and support for organisations. However, fire officers can, on occasion, demonstrate a determined attitude in insisting that specific fire-safety measures are implemented within premises, and the advice provided can be more prescriptive than that of other regulators. For businesses, this means that it is beneficial to seek good advice on fire-safety matters at a very early stage, so that they can ensure that their proposed safeguards are considered acceptable, and avoid any wasted time and cost in investing in equipment and procedures that later need to be changed.
Conclusion
Each regulator has a different style of working and a different set of priorities, but what is clear is that good communication is key to building an effective working relationship with them. As an employer, this means that relevant, accurate advice can be received from the regulator when needed, while the regulator will have a good understanding of how the business operates. The crucial benefit to all parties is that this should go a long way towards avoiding an environmental or safety incident occurring altogether.
However, if the worst does happen, it will also mean that the regulator will have a better understanding of the steps that have been taken by the business to manage regulatory risks, and minimise the chances of a similar incident reoccurring. This is always a key factor for any regulator in deciding whether they need to use any of their enforcement powers following an incident or inspection.
Alison Gray is a partner and Anna Hart a solicitor in the environment & safety team at law firm Dickinson Dees.
The Safety Conversation with SHP (previously the Safety and Health Podcast) aims to bring you the latest news, insights and legislation updates in the form of interviews, discussions and panel debates from leading figures within the profession.
Find us on Apple Podcasts, Spotify and Google Podcasts, subscribe and join the conversation today!
There is no mention of EHOs?