Anybody who has experienced a serious health and safety incident knows that the emotional impact can be colossal, but to what extent can employers respond to the human challenges raised in the aftermath? Alison Gray and Anna Hart offer some advice on what to do in such circumstances.
All too often managers and business leaders don’t know where to start when trying to navigate their way through the aftermath of a serious or fatal health and safety incident.
It is undoubtedly a very uncertain time for everybody involved, and dealing with a lack of information about what happened, why it happened and what will happen next is perhaps the biggest challenge. Aside from regulatory investigations and legal proceedings arising from a safety incident, organisations have a moral responsibility to consider the needs of, and communicate with, injured workers, their families, friends and co-workers, and to show sensitivity towards them.
Coping with these so-called softer issues is not easy. There is no textbook, or official guidance on how employers should manage their relationships with people affected. Nor are there any universally right or wrong answers. However, in the majority of cases, employers that find themselves in this situation first and foremost want to do the right thing. They want to understand what happened and what can be done to prevent a recurrence in the future. They also want to look after the people affected by the incident and provide as much support as possible, whether this be practical, emotional, or financial assistance.
However, there is a balance to be achieved between offering help and interfering in the private lives of those affected. Understandably, it can take time for people to come to terms with what has happened, and an approach to families by an employer (who they may perceive as being responsible) may not necessarily be welcome. Employers also need to be careful that their good intentions do not amount to accepting legal liability for any failings that could become the subject of a future civil claim, or criminal prosecution.
Below is a checklist of things for employers to consider should they find themselves having to deal with the consequences of a safety incident and are uncertain about the correct course of action.
Be prepared for gossip and rumours
Rumours and gossip among staff can shatter morale. In the aftermath of an incident, it is inevitable that staff will talk among themselves and with friends and family outside the business. Facts may get distorted, exaggerated, or lost altogether, resulting in staff hearing all sorts of conspiracy theories about what happened and what the consequences will be. More often that not, this will boil down to somebody somewhere being blamed for what happened, and jobs being lost as a result.
Be communicative
Even the very best communicators cannot guarantee that information will be conveyed effectively to all employees to prevent the rumour mill from turning. However, timely and straightforward communication with staff can make a world of difference. Staff want to be reassured, both about their safety and their job security. Therefore, managers should act quickly following an incident to explain concisely what has happened and who has been affected.
Even more importantly, staff should be kept up to speed with what is about to happen, who will be investigating, and why. All too often, operational staff tell us that the presence of suited and booted senior managers, external investigators and advisors on the shop floor makes them feel very uneasy and under suspicion.
Recognise that people react differently
Every individual will react to an incident differently. For some, this means getting back to work and back to normal as quickly as possible. For others, it means having time to take stock and reflect on what has happened and what might have been. We find that this is often the case for anybody who was directly involved in the incident, or witnessed what happened.
Managers are faced with difficult competing interests. The harsh business reality is that work must continue to fulfil orders, or risk upsetting customers and losing future work, which could place the long-term future of the business in jeopardy.
However, there also needs to be room for compassion to allow staff time to process what has happened and recover from the trauma. Wherever possible, businesses need to be flexible with staff and recognise that there is no ‘one size fits all’ solution. The last thing that anybody wants at this time is a second incident. The chances of this occurring will doubtless be higher if staff are back at work when their minds are elsewhere, or they are exhausted and drained by their previous experience.
Be sensitive to the pressures of being a witness
More often than not the incident investigation will involve employees being asked to provide witness evidence. This can stir up a raft of emotions, particularly for those people who are friends of victims of serious incidents. The purpose of any incident investigation is to identify root causes; this could include finding out if the workers involved were following correct procedure, or had taken shortcuts to make their job easier. This creates a clear conflict for people who want to help with the investigation but who don’t want to land their friend in trouble, or cause increased heartache for their family.
The role of the employer here is to recognise the potential issues and act sensitively to this sort of concern. Staff should be reassured that the primary purpose of the investigation is to improve safety in future and that it is not a witch hunt. Staff should also be reassured that, except in very limited situations, they cannot be compelled to answer a specific question if they feel uncomfortable with it (with the exception of interviews conducted by the HSE under section 20 of the HSWA 1974).
Contact relatives with care
Contacting an injured employee, or the family of a deceased colleague must be handled with care. Perhaps the most difficult decision to make is how and when to make this approach.
In our experience, opinion in this area is very much divided – both among employers and employees and their families. For some, an early show of support from the employer is critical, even if there is little that can be done to help, as a gesture can go a long way to build bridges and regain trust. For others, employers that plough in too soon can seem clumsy and insensitive – this is not a corporate deal which can be shoe-horned to completion at the earliest possible opportunity.
Before making any approaches, employers should think carefully about what they want to achieve by making contact. For example, is it a simple case of showing support? Is there some practical assistance that can be offered – perhaps medical or rehabilitation assistance, or bereavement counselling? Do you need anything from the individual – perhaps a witness statement for the internal investigation?
Being clear about the purpose of contact can really help in making decisions about when to make such an approach, who should be involved, and how it should be done. For example, is a quick phone call enough, or would visiting the family home be more appropriate?
It is also important to think about who should be involved in contacting employees and their families. In some cases, the right person will be a senior director, demonstrating that the business is taking the incident very seriously and is using every available resource to manage the situation. In other cases, this approach may seem stuffy, or intimidating and a better idea would be for a close friend, or colleague from work to call in to see how things are going.
There are also times when the HR team should be involved. This is particularly relevant if the business is considering any form of disciplinary action as a result of the incident, or if arrangements for long-term sickness payment, death-in-service benefits, or changes to employment need to be discussed.
Make the legal process easy
The legal process following an incident can be daunting. For most employers, this is a step into the unknown and a minefield of potential problems. For employees, who have even less awareness of the potential issues and the format of legal proceedings, the prospect of being asked to provide a witness statement, or attend a court hearing can be terrifying, and certainly not something they would have anticipated when they took their job.
Those involved in handling investigations, claims and prosecutions on a day-to-day basis – from HSE inspectors to police officers, and court staff to solicitors – can, on occasion, be guilty of forgetting how imposing an environment an interview room or court can be. But it is vitally important that everybody is kept informed, so that their expectations are managed effectively.
On one occasion, the widow of a deceased worker attended court for the first hearing in the case, expecting that the whole prosecution and sentence would be dealt with there and then. Nobody had told her that it was only an administrative hearing and not even a plea would be entered that day. Understandably, this came as a devastating blow to the family, which had prepared for a full hearing.
Employers are certainly not obliged to be advising other parties about what to expect in a case and, in many situations, this will not be appropriate. However, if there is an ongoing relationship with the family involved, there may be an opportunity to maintain a level of dialogue – at least to make sure that everybody involved knows what to expect at each stage and how long the process will take. For many, the thought that a case could take two or three years, or more, to be concluded, will be something of a surprise.
Be PR savvy
Finally, do what you can to soften the impact of press headlines. The concerns of employees should be fed in to the media strategy of the employer, particularly in the early days following an incident. Reporters may turn up on site looking for comment from staff, and stories may be printed that are not entirely accurate. If not handled properly by the employer, this can create unease and mistrust among staff if they feel they have been misinformed, or ignored.
Simple steps, such as providing an early briefing for staff and limiting media comment to a concise factual statement, can minimise the risk of wayward headlines appearing unexpectedly. As a last resort, if you think there is a risk of difficult press coverage emerging, simply warning staff of what to expect can go a long way towards limiting the upset it causes.
Summary
Looking after staff during such difficult times is never going to be easy and no amount of pre-planning and strategising will account for every question you may be asked, or every concern that may be raised. However, what is possible is to ensure that your organisation behaves in a conscientious and responsible manner, striking a sensitive balance between demonstrating compassion for staff and their families, and protecting the commercial and legal interests of the business to safeguard its long-term success and the security of everybody involved.
Alison Gray and Anna Hart are solicitors at law firm Dickinson Dees.
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