Acting mainly for duty-holders who are faced with sudden crises which completely transform the working lives of employees, managers and directors, lawyers often take many “code red” calls and rush to sites to deal with incredibly traumatic events.
A typical interaction in these circumstances is fraught. Staff are understandably shell-shocked and struggling to deal with the constant demands made by a stream of stakeholders, ranging from board members, owners, mass media, employees, customers, contractors and family members. Often given very brief details, lawyers will be told what has happened and they’ll be asked obliquely if anyone will go to prison as a result of the incident. With this in mind, the authors set out the regulatory framework in such circumstances and how firms should react.
A regulatory investigation following a fatality
The work-related death protocol (WRDP) is clear as to who has the primacy to investigate where someone has died at work. The police will lead, assisted by the Health and Safety Executive (HSE) or the local authority.
The police have powers under the Police and Criminal Evidence Act 1984 (PACE) to formally interview, take evidence and investigate where there is an indication that an offence of manslaughter (whether corporate or individual) or a criminal offence other than a health and safety offence may have been committed. The police have the power of arrest in relation to all offences, including manslaughter and health and safety offences.
The purpose of the WRDP is to provide a framework for effective liaison, and it usually:
- contains an agreement to share resources and expertise to assist authorities
- coordinates timely decisions over prosecutions for manslaughter and health and safety offences
- allows for consideration of joint proceedings when both HSE and the Crown Prosecution Service (CPS) decide to prosecute
- keeps relatives of those killed in accidents at work informed of progress of the investigation(s) and any legal proceedings
The police will prepare a file for the CPS, which is responsible for prosecution decisions in corporate manslaughter and corporate homicide cases. HSE assists the CPS in its decision-making by informing it of relevant health and safety legislation, approved codes of practice, guidance and other relevant benchmarks. The CPS, however, has the final decision. It is not uncommon for HSE employees to assist the CPS by providing expert opinion including, in some cases, a view upon how far below an applicable standard the duty-holder fell.
If there is a suspicion that someone could be in gross breach of a duty of care which contributed to the death, the investigating officers will usually arrange to interview the individual separately under caution
If there is a suspicion that someone could be in gross breach of a duty of care which contributed to the death, the investigating officers will usually arrange to interview the individual separately under caution, normally with a solicitor present, in a police station, for the offence of gross negligence manslaughter. This can be particularly disorienting for an interviewee; practice lawyers will be unable to represent the individual in the police station to avoid any potential conflict of interest. This can lead to feelings of being thrown under the bus when, in reality, it is an attempt to best protect that individual’s interests.
When or if the CPS is satisfied that no “serious criminality” has occurred, primacy is handed over to HSE for an investigation into potential breaches of health and safety legislation.
A regulatory investigation following a serious accident
In the event of a serious incident that stops short of inflicting fatal injuries, or in circumstances where the police have handed the investigation over, HSE will have the responsibility to create a case file. The practice should expect to be host to photographers, reconstruction, and mechanical, electrical and human factors experts as necessary.
In the event that an inspector is of the opinion that a person is breaking safety law, they can serve an improvement notice requiring the person to remedy the contravention within a time-limited period. If the inspector is of the opinion that an activity carried on (or likely to be carried on) by or under the control of that person involves (or will involve) a risk of serious personal injury, a prohibition notice, which requires that work activities should not be carried on until specified matters have been remedied, may be served. Notices can be appealed.
Powers of HSE
This is a complicated area and legal advice should be sought, although the main provisions are recorded in section 20 of the Health and Safety at Work etc Act 1974 (HSWA). With regard to documentary evidence, the HSE has the power to obtain copies of documentation to be taken. These powers do not extend to obtaining originals or documents that are legally privileged and so legal advice should be sought before documents are handed over. The HSE can also enter premises and take photographs and samples at a reasonable request.
The HSE has the power to obtain copies of documentation to be taken. These powers do not extend to obtaining originals or documents that are legally privileged
The HSE will want to interview individuals either as witnesses or suspects. There are three kinds of witness interview:
- a PACE interview, often referred to as an “interview under caution”, in which the individual is suspected of breaching safety laws
- under section 20 of the HSWA where the HSE has specific powers to ask a witness questions which they are compelled to answer
- via standard witness statements with the HSE where the witness is not compelled to answer, and which are exhibited in an approved format
If an individual is to be interviewed as a witness, they should be briefed in advance about the format of the interview and reassured that the interview is being undertaken to detail evidence. Following law society guidance, practice solicitors will not be able to sit in on the interview, so the interviewee should be asked if they would like a colleague or someone from human resources to sit in to provide support. If a corporate body is suspected of having committed an offence and is called to attend an interview under caution, then a representative will need to be authorised to speak on the corporate body’s behalf.
Legal privilege entitles a person who has received legal advice to refuse to produce or disclose any lawyer/client communications. It is a legal right that has developed to protect client confidentiality and can be used to prevent disclosure of information to third-party claimants in civil proceedings, the courts and investigating officers (statutory powers of investigations and compulsion contain a specific exclusion in relation to privileged material).
But for legal privilege to apply, the lawyer/client communications must be confidential in nature and conducted for the purpose of receiving legal advice (known as legal advice privilege), or there must be documents that are created for the sole or dominant purpose of gathering evidence for use in legal proceedings (litigation privilege).
For legal privilege to apply, the lawyer/client communications must be confidential in nature and conducted for the purpose of receiving legal advice
The ability to withhold potentially damaging information from an investigation is a powerful tool. However, the rules regarding the application of privilege to communications and documentation are narrow and prescriptive and became even more so recently.
Many regulatory lawyers advise clients to use the shield of legal privilege to protect investigation findings during an investigation; if there is a danger that the internal investigation will uncover matters which are more harmful to a practice’s position than initially apparent, there is a real attraction in allowing the client to get its house in order without fear of additional sanction.
In most cases, however, the truth will out. In the event of conviction, it is far better to show a sentencing judge that the defendant has fully explored the issues and has taken appropriate action. It is far easier to plead clemency by pointing to a full and frank investigation and sensible actions taken as a result between the date of the incident and the date of the hearing than to ask for leniency on future promises of what a defendant will do. This is another time when the best advice is to seek competent legal advice on what to do.
Incidents in the veterinary profession
Back in 2005, the Royal College of Veterinary Surgeons (RCVS) commented on its website that “historically, veterinary practices have not been proactively inspected as a matter of course. However, in a timely reminder of the importance of the new RCVS Practice Standards Scheme to modern-day veterinary practice, the HSE has shown this may no longer be the case following its recent inspection of some 27 practices in North Yorkshire” (RCVS, 2005). It appears that one practice was served with an enforcement notice and four were notified of major shortfalls, but most practices fell short in relation to both control of substances hazardous to health (COSHH) and manual handling assessments.
In January 2014, the HSE prosecuted John Kenward, a director of Pet Emergency Treatment Services Ltd, a veterinary practice in Maidstone, Kent, for allowing an employee to X-ray her own foot. He received a conditional discharge and was ordered to pay £1,296 (Croner-i, 2014).
Then, in October 2014, Davies Veterinary Specialists was prosecuted after employees were potentially exposed to cancer-causing drugs as they prepared medicines to treat animals with cancer at the firm’s premises at Manor Farm Business Park in Higham Gobion, Bedfordshire. It was fined £35,000 and ordered to pay £50,378 in costs (Vet Times, 2014).
Bad things can happen to good people. Having an overview of what can go wrong helps organisations to plan, prepare and act accordingly. Preparing a crisis management plan to include the 24/7 phone number of solicitors is a good first action. Thought should be given to the counselling provision in place with occupational health and ask whether there is an option to add incident cover.