CHSG 18 July 2012 An Inspector Calls Sean Elson Pinsent Masons LLP

This afternoon Why does this matter? –Large fines – going out of business –HSE Fee Recovery – more invoices –Individual liability – Prison How should we manage this? –Awareness –Training –Process & procedures

Pinsent Masons National H&S team across whole of UK Multi-disciplinary team including in-house barristers and Chartered IOSH H&S Practitioners International construction reputation Representing clients in post accident investigations/prosecutions –often fatal incidents Before the event non-contentious legal H&S advice Instructed by clients but often supported by insurers

The context No-one expects to have an incident Are we as good as we think we are (have we tested that)? HSE pro-active inspection regime to be aimed at smaller contractors This all happens quickly and in real-time – responding at a point of crisis can seriously affect how things end

Were you sitting comfortably? The number of convictions of individuals is rising Temperature increased by Corporate Manslaughter Act 400% increase in prosecutions under s.37 in last 5 years 43 prosecutions under s.37 HSWA in 2010 – 2011 In 21 cases where no incident of any kind had taken place In there were 10 prosecutions under s.37! HSE just announced prosecution of 2 police officers for training fatality involving firearm

The Hard Yards Are safety building blocks in place? –Risk assessment –Method statements –Inspection records –PPE and welfare If not then already have one hand tied But – if we do, that’s expected and cuts little ice Systems for responding to incidents/inspection visits Insurers on board

The Inspector calls Establish who and what for? Meet and greet arrangements Identification? Noting conversations? Shadowing the Inspector How does it differ if it’s the police?

What do they want? A walk around? An investigation – of whom/of what? To examine documents? –RA’s and the like –Site plans –Inspection records –Training materials To speak to people? –Informal discussion? –Formal interview – if so what type?

Common Mistake No.1 “It’s not us they’re looking at – it’s the other fella”

Document requests HSE has power to take copies (or remove to take copies) Does not extend to legally privileged material Voluntary/s.20 Health & Safety at Work Act Obstruction offence Try to ensure that only copies are taken away Log what has been provided Preserve documents in time

Informal discussions Quite common – “banging heads together” Can resolve issues quickly and cheaply May involve follow up correspondence Take care – be aware of the bigger picture – enforcement action may also be planned This will in the future be part of the HSE fee recovery scheme

Common Mistake No.2 An enforcement notice means the end of it

Interviews with individuals Inspector may ask you to identify who they should be speaking to E.g. “Who is responsible for the lifting plan?” Discussions may be informal Could become witness statements May become interviews under caution at a later date Take care in identifying the right person responsible for a certain aspect of activity How to support individuals?

Interviews Nothing is off the record but there are informal discussions In enforcement cases HSE will take witness statements for individuals to sign Powers to compel people to answer questions - s.20 HSWA – legal right to support in interview PACE Interviews – usually by letter of invitation –Of the business or individual? –Right to legal advice –No need to attend at all – good idea or bad?

Practical stuff Internal policy or protocol for responding to interventions – at least think about it Appoint someone to lead on the response and agree with HSE What about closed sites and plant off limits? Is insurance in place – who will advise you/retained advisors? Document registers Preserve documents and photograph key issues Be careful what you create post incident

Smoking guns Post incident communications –Notes on site/site diary – s –Memos etc Accident investigation reports –Be clear about the process before setting off –Should it be legally privileged – what does that mean? Non legally privileged material discloseable to HSE/Personal injury lawyers etc Any contractual provision for disclosure e.g. To PC

Common Mistake No.3 “We’ve had an accident – quick, start investigating!”

Fee for Intervention Changes the relationship between HSE and duty holders How to meet the challenge? –Importance of meet and greet –Understand the regime –Can it be headed off/mitigated Templates for response and/or appeals? Watch this space for CHSG training!

Common Mistake No.4 “We have a good safety record and take H&S seriously – surely they won’t take action against a business like ours”

Summary Hope for the best – expect the worse & plan for it If an Inspector calls understand the context & the consequences Plan the response to an incident as you would plan a project

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