When the (H&S) Inspector Calls… Rebecca Carriage Howes Percival LLP 22/11/20151© 2012 Howes Percival

What I am going to cover 22/11/20152© 2012 Howes Percival (Not just H&S) What is an Inspector? Inspectors’ powers Where could it all end up? Interviews by Inspectors Hints and tips

What is a Inspector? 22/11/2015© 2012 Howes Percival3 S 19 HSWA Appointed by the enforcing authority In writing Powers and area of authority can be limited Asking to see Inspectors’ written authority?

Inspectors’ Powers (1) 22/11/2015© 2012 Howes Percival4 S 20(2) HSWA (and s 25 HSWA - “imminent danger”) Key powers –Entry –Taking a constable –Examine and investigate –Take away samples, take photos, take copies of paperwork –Require information of individuals – s 20(2)(j) –Facilities to be afforded to the Inspector to carry out powers.

Inspectors’ Powers (2) 22/11/2015© 2012 Howes Percival5 S 25 – imminent danger: –Seize or render harmless if believes cause of imminent danger of serious personal injury

Inspectors’ Powers (3) 22/11/2015© 2012 Howes Percival6 You are unlikely to be able to foot-fault an Inspector exercising powers. But think about timing of interviews – unless s 20(2)(j) used.

Where could it all end up? (1) 22/11/2015© 2012 Howes Percival7 Prosecution –Business Fines Compensation Costs Reputation –Individuals - if corporate defendant committed an offence – s 37 HSWA –Where a death occurs NORMAL “INSPECTOR CALLS” RULES ARE OFF Manslaughter? Corporate Manslaughter and Corporate Homicide Act 2007? Police and HSE often act together

Where could it all end up? (2) 22/11/2015© 2012 Howes Percival8 Regulatory Enforcement and Sanctions Act 2008? –Civil sanctions –Enforcement undertakings A “formal caution” No further action Civil claim/s?

Where could it all end up? (3) 22/11/2015© 2012 Howes Percival9 Tell your insurers –Criminal penalties/costs/your costs/compensation orders?

Interviews under Caution (1) 22/11/2015© 2012 Howes Percival10 Interviews vs “interviews under caution” -- witness or potential defendant? Position of employees not representing the company/partnership Police and Criminal Evidence Act 1984 The “caution” – what it means (not the same as a formal caution outcome) Legal representation and others “sitting in”.

Interviews under Caution (2) 22/11/2015© 2012 Howes Percival11 Should the invitation to attend an interview be accepted? –With the right interviewee, it could help you explain and put forward the company’s point of view –It could reveal “where the HSE is coming from” –It will “show willing” (a mitigation point) BUT - –It could result in admissions – acceptable if already proven but if not? (More an issue for environmental than H&S?)

Interviews under Caution (3) 22/11/2015© 2012 Howes Percival12 Who should represent the company at the interview? –Someone who… is senior (usually) understands legal obligations and in particular management and competency duties knows what happened and has an overall grasp has gravitas is not aggressive, prone to lose temper, pompous, in a hurry, terrified, “known” to the interviewers, unprepared, thinks (and, worse still, says) ‘elf ‘n’ safety is a load of old *******

Interviews under Caution (4) 22/11/2015© 2012 Howes Percival13 Preparation for the interview –Agreeing who is going to do the interview on behalf of the company/partnership –Is the proposed time and date for the interview acceptable? –Where is HSE “coming from”? Hint in the title? Information from other witnesses? An obvious accident? Any other hints?

Interviews under Caution (5) –Prepare accordingly but there will always be emphasis on… HSE Guidance and other guidance – HSE website and Competence – including training records, up to date training? Processes – RAs; does what was done match what is said in the RA? Any “previous” – especially if it relates to the same type of incident – not just prosecutions but also other investigations, reported near- hits The paperwork. Do you have all items likely to be referred to?

Interviews under Caution (6) 22/11/2015© 2012 Howes Percival15 What happens at the interview? –Mind games (recorder, 2 tapes/CDs, “you are not under arrest”. Do not try code tactics with your legal representative/other person sitting in) –Usually 2 interviewers –Usually small and hot room – do not wear your thickest suit –You can break – but constant stops by a legal representative look bad –Not just a case of answering HSE’s questions – do you have anything to add? If so, do so with care –The HSE will not tell you what they intend to do at the interview –A copy of the tape is usually only provided if there are further proceedings –It is tiring – be kind to yourself before and after

Hints and Tips (1) 22/11/2015© 2012 Howes Percival16 Be prepared Be equipped Be on time Be measured Be prepared for press interest – everything via your press officer/a nominated member of staff?

Hints and Tips (2) Should you establish a protocol for who says what to whom in the business? Management should always be contactable to take control if required Rules for who takes the initiative – needs to be subtle; you are not saying “employees may not talk to HSE”

Questions? Rebecca Carriage Howes Percival LLP

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