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May 12, 2010

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SHE 10 “Don’t shoot me, I’m only the Consultant”

The above is the title of a very popular presentation by Mike Appleby, partner of law firm Housemans. His talk had eager delegates listening from a long way outside the SHP Legal Arena, which was nowhere near big enough to contain them all.

The presentation discussed the potential criminal liabilities of individual consultants and advisers who are engaged, but not directly employed, by an organisation and who are alleged to have contributed to health and safety failures in that organisation.

Consultants are often called in to conduct risk assessments for a company or as occupational health advisers. When investigations are undertaken by the HSE, it often looks to the occupational health consultants who advised the company.

“While prosecutions of individual consultants are still relatively rare, anecdotal evidence shows that investigations are becoming more common,” Appleby observed. “The conduct of a consultant may be investigated when the chain of management is being considered, or when there is a management failure under the Corporate Manslaughter Act.”
Consultants may have both primary liability under s3(1) of HSWA or secondary liability under s36(1) of the same Act and could be prosecuted for failure to act as well as for a breach of duty.

Although fines handed down in the prosecution of consultants have so far been relatively small, under the Health & Safety (Offences) Act 2008 they could be sent to prison for up to two years if they were convicted in a Crown Court.
“Consultants should think about making the client appreciate the importance of understanding their expertise before bringing them in. The information the company supplies to the consultant must be correct, and access to information must be available,” Appleby warned.

If they are investigated, Appleby urged consultants to think about practical issues such as:
• Am I being treated as a suspect or a witness in this case?
• Do I need separate legal advice? Is there a conflict of interest?

If a consultant is interviewed, Appleby pointed out that if they give a voluntary statement, they do not have to answer questions if they do not want to. “It’s your statement,” he pointed out. “Under s20 of HSWA, while you have to answer questions from HSE inspectors, your answers cannot be used against you in any prosecution.”
Appleby’s final piece of advice was: “If you are interviewed under caution, the HSE cannot force you to answer, unlike the Police. If you give a prepared statement, then you have control over the interview. Think before handing over documentation, as the HSE may not be entitled to it. Always take legal advice.”

Appleby’s final piece of valuable advice for consultants and advisers to think about was: “If things go wrong, may the blame be found to lie with someone else as long as the evidence proves it.”


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