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August 4, 2010

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Investigation and enforcement – In search of the one

Individuals are increasingly being singled out for criminal investigations following accidents at work. John Gollaglee looks at the impact such investigations can have on health and safety professionals and organisations.

In recent years, there has been a marked increase in regulators – notably the Health and Safety Executive (HSE), Police and local authorities – actively considering during accident investigations whether individuals can be deemed responsible for causing death and injury through breaching health and safety law.
For an offence of corporate manslaughter to be committed there has to be a gross breach of a duty of care owed by the organisation to the victim. New to this statutory offence is the need for a substantial part of the breach to be caused by a collective failure at senior management level, which means that the roles of those outside the boardroom are now under scrutiny when a workplace fatality occurs.

Many will recall the debates that surrounded the implementation of the Corporate Manslaughter and Corporate Homicide Act 2007 and its failure to impose specific duties on directors and managers. But it is during investigations for offences under the Act where individuals are experiencing the biggest impact.

Before and after

Prior to the implementation of the Act, the investigation of workplace fatalities followed a routine pattern. The Police would arrive at the site alongside the ambulance and, after initial investigations to rule out foul play, would hand responsibility for investigating the death to the HSE, or local authority, who would then consider compliance with health and safety obligations. The only further role the Police would play was to prepare a factual report for the coroner. Only in the most clear-cut of cases would the role of individuals be specifically investigated by the HSE, or the local authority, and perhaps the only contact that a senior manager would have with these officers would be to provide a voluntary statement, or to be the nominated representative of the business at any interview under caution.

However, following the introduction of the Act, such investigations have changed. It is the Police who are obliged to investigate suspected cases of corporate manslaughter, despite not being experts in this area.

Typically, the Police deal with individuals suspected of committing criminal offences, and have appeared, on occasions, to be less comfortable handling an investigation of a corporate suspect. As a result, investigations into corporate manslaughter have been long and drawn out, as the Police retain control of the investigation for much longer periods. 

The Police are also adopting a very different approach to investigating workplace deaths. Now, following a death at work, officers are rounding up everyone and interviewing them under caution on suspicion of individual gross-negligence manslaughter. 

Guilty by association?
Health and safety professionals are also increasingly vulnerable targets simply because of their job title.

The majority of health and safety professionals are primarily responsible for safety assessments and advising management on the implementation of systems and procedures. However, anyone with ‘health and safety’ in their job title will now be of great interest to the Police, who naturally assume that health and safety is their responsibility. It is becoming a real challenge to explain to police officers that the role of health and safety professionals is mainly advisory, and not operational.

In one case that is still ongoing, a health and safety manager of a company is under investigation following a death at a local site. While this individual was not at the site at the time of the accident, he was interviewed under caution for a full day at a police station on suspicion of gross-negligence manslaughter. Given that corporate manslaughter investigations are taking a long time to conclude, the manager can expect to be under investigation for some time yet.

While these individuals may be ‘under suspicion’, often it is the company and its directors who are of primary interest to the Police, and officers are using interviews with health and safety personnel as a convenient way to retrieve information that could be used against the business.

During police interviews many professionals are facing questions such as: Who was the director responsible? Why did they not take your advice? Such a line of questioning is effectively putting health and safety managers in the position of invidious whistleblower.

Although interviews under caution should only be held in appropriate circumstances, and where there is reasonable suspicion that the interviewee has committed an offence, it can be difficult to challenge the approach the Police are taking.

Threat of arrest
The Police, unlike the HSE or local-authority officers, have the power to arrest a suspect. While the Police appear to accept the difference in approach required in such matters compared with ‘core’ criminal cases, and invite interviewees to attend voluntarily, those who refuse may now find themselves being arrested, taken ‘down the station’, having their fingerprints taken – and then interviewed. This heavy-handed approach by the Police can be extremely stressful for health and safety professionals, or other managers who are used to dealing with the HSE.

The types of criminal the Police deal with on a daily basis have often deliberately set out to break the law. This rarely applies in health and safety. Being strict-liability offences, it matters not that the business did not know that it had breached safety law, or whether it intended to break safety law; if the safety obligation is breached, an offence has been committed. However, individuals employed by a company often receive the same treatment by the Police following workplace deaths as those who have committed offences deliberately or recklessly, and it can be an extremely traumatic experience.

Lessons for individuals
A corporate manslaughter investigation can take many months, if not years, to conclude. For individuals caught up in the process, this will ultimately cause them great stress and anxiety.

Health and safety investigations are rarely clear-cut, and it is extremely difficult to establish ‘who did what’ and the extent of any suspected breach. Therefore, once a request for interview has been made, those under suspicion should immediately seek out appropriate legal representatives who have experience of dealing with the Police and criminal investigations. Experienced health and safety lawyers can establish whether the Police have enough evidence to pursue an investigation, and should also be able to postpone an interview to give individuals more time to prepare.

As a health and safety professional it is important that you firmly establish: your exact job description; whether it is an accurate reflection of what your duties involve; what is expected of you by your employer; and if you are comfortable with the expectations and responsibilities assigned to you.

Lessons for employers
In addition to individuals, the implications of an investigation for a business, in terms of its reputation, as well as financially and operationally, are significant. If not handled effectively, an investigation could cause irreparable long-term damage. Therefore, it is essential that effective procedures, as well as adequate provisions, are in place, in terms of correct insurance cover, crisis-management planning, access to experienced legal representation, and communication and leadership strategies.

While many companies will have lawyers based internally, or engage the services of an external firm, in-house legal professionals and solicitors from the retained firm will often be called upon to represent the company under investigation.

The Solicitors Code of Conduct prevents solicitors from acting for more than one client where there is, or might be, a conflict between the best interests of those clients. Therefore, if individuals need the services of a lawyer, there is often potential for conflict and they will need separate legal representation.

Indeed, I have experienced cases where we were instructed by the company and then had to find separate lawyers to represent several directors who were under suspicion. Engaging the services of numerous lawyers can incur expensive legal bills, and while companies should have Directors’ and Officers’ (D&O) Liability Insurance, it is essential that businesses check the policy to ensure it covers all senior personnel who may come under suspicion.

It could be argued that some health and safety managers are not strictly senior personnel, and are therefore not covered by D&O insurance. To date, in cases in which I have been involved, this has not really manifested and there has been little quibble from insurance firms to extend cover to those sitting just outside of the boardroom. But, as more individuals are investigated and the number of claims rises, evidence suggests that many insurers will start to tighten up their criteria, and organisations will begin to find that health and safety professionals may become excluded from D&O policies.

Against this background, companies should consider widening cover and possibly taking out Management Liability Insurance. This could provide broader cover for both the company and its key individuals when facing investigations and prosecutions for health and safety-related breaches.

People make the news
The rise in individuals being singled out for investigation has also sparked much interest in the media. ‘People make the news’, and it is a fact that an individual under investigation is more likely to hit the headlines than a company.

A case in point is Cotswold Geotechnical Holdings Ltd, which became the first to be prosecuted under the new Corporate Manslaughter Act, following the death of a junior geologist while taking soil samples. The firm’s director became the target of media headlines, far more so than his firm. However, the rise in media interest, coupled with new sentencing guidelines, which include publicity orders that may require offending organisations to publicise their conviction, can be immensely damaging to a company’s brand.

To ensure damage limitation, it is recommended that organisations formulate a crisis-management strategy, which should be ready to implement immediately in the event of an incident in the workplace.

Blame game
An investigation can also be extremely disruptive. Previously, when it was a company that was under investigation, everyone tended to pull together in the best interests of the business. However, evidence shows that when there is a number of individuals under investigation, some could be less likely to work together for a favourable outcome as they move to protect themselves.

In some cases, a blame culture begins to emerge, which can only have a negative impact on a company’s performance, as well as its bottom line. Situations like these require strong leadership from the top, as well as an effective and cohesive management strategy.

While many in the health and safety profession believe that targeting individuals is counter-productive and makes the industry a less attractive place in which to work, in the current climate it is inevitable that more individuals will come under suspicion.

Health and safety professionals are employed to help companies meet legal duties, and to incorporate safety into the systems. Independently, these individuals cannot ensure safety in the workplace, as they the need full cooperation of senior management and directors to implement their recommended procedures.

However, until the Police fully understand the role of the health and safety professional, they will often remain the first port of call for investigating officers, who may also see them as potential whistleblowers.

Therefore, it is advised that everyone in an organisation – from senior management to those linked to health and safety, however tenuous – ensure they have adequate procedures and protection measures in place to deal with fatal accidents in the workplace.

John Gollaglee is head of the health and safety team at Manchester law firm, Pannone.

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13 years ago

Worth mentioning the effect of the Health and Safety (Offences) Act 2008 which increases the penalties for individuals investigated under S37 and S7 of the Act to include prison even in non-fatal cases. We at Eversheds are seeing an increasing number of investigations involving amputations, crushes and falls from height where the HSE (or Local Authority) are investigating individuals with a view to prosecuting under the HSWA – but with the new sentencing powers under the Act available.