Code Red: Is your business geared to handle a serious incident?

BY: Paul Verrico is Head of the Global Eversheds Sutherland EHS Team. Phil Crosbie is a health and safety solicitor at the same firm.

Lawyers often take many ‘code red’ telephone calls and rush to sites and help organisations and individuals come to terms with incredibly traumatic events. 

 A typical interaction with a director in these circumstances is fraught. The director is understandably shell-shocked and struggling to deal with the constant demands made by a stream of stakeholders, ranging from other board members, company owners, mass media, employees on site, customers, contractors, and family members.

Often given very brief details, in a staccato tone, lawyers will be told what has happened. They’ll be asked obliquely if any will go to prison as a result of the incident.

A regulatory investigation following a fatality 

The work-related death protocol is clear as to who has 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 if a criminal offence other than a health and safety offence may have been committed.

The police have a power of arrest in relation to all offences, including manslaughter and health and safety offences.

The purpose of the protocol is to provide a framework for effective liaison, and it usually contains an agreement to share resources and expertise to assist authorities; co-ordinates timely decisions over prosecutions for manslaughter and health and safety offences; allows for consideration of joint proceedings when both the HSE and the Crown Prosecution Service (CPS) decide to prosecute; and keeps relatives of those killed in accidents at work informed of progress of the investigation(s) and any legal proceedings. 

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; the company’s 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 cast out and thrown under the bus when, in reality, it is an

When or if the CPS is satisfied that no ‘serious criminality’ has occurred, primacy is handed over to the 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 which stops short of inflicting fatal injuries, or in circumstances where the police have handed the investigation over, the HSE will have responsibility to create a case file. The employer should expect to be host to photographers, re-construction, 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 on various grounds. 

Powers of the HSE

This is a complicated area and legal advice should be sought, although the main provisions are recorded in Section 20 Health and Safety at Work etc. Act 1974 (HSWA). With regard to documentary evidence, the HSE has a 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 on a reasonable request. 

The HSE will want to interview individuals either as witnesses or suspects and 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 HSWA where the HSE has specific powers to ask a witness questions which they are compelled to answer.
• And via standard witness statements with the HSE where the witness is not compelled to answer and which are in an approved format. 
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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, company 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 HR 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. 

Stakeholders

When the worst occurs, the family has a right to know what happened. There is often an ethical dissonance when executives, lawyers and management ‘know’ what happened, yet the family do not know how their loved one came to their end.

In the immediate aftermath, the company should communicate respectfully with the family of the victim, avoiding conjecture, but being sympathetic to their likely anger at the situation they now face. It’s advisable to speak to the police family liaison officer before communicating. 

If the incident is not fatal, an injured person should not be hounded, in hospital, for their version of events whilst they are recovering from an operation or sedated. Any evidence taken under these circumstances will have dubious weight and will antagonise going forward.

However, providing face-to-face counselling is entirely appropriate and is encouraged over telephone support; such counselling should also be extended to eyewitnesses and to any family members who may be traumatised from the ordeal.

The ideal is to ‘be human’. An example of good practice might be a company opening an account with a local taxi company following an incident so that the family of a critically injured man could visit without worrying about parking or cost.

The press and social media will likely begin to comment and offer conjecture; this can be difficult to deal with and should be met by a single point of contact so that there are no mixed messages. The advice is to not reveal information to the media that has not been carefully thought through – for instance, not sharing the names of those involved in an incident before family have been informed.

Legal privilege

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 to 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 must be documents that are created for the sole or dominant purpose of gathering evidence for use in legal proceedings (litigation privilege).

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 company’s position than initially apparent, there is 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.  

Conclusions

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 counselling provision in place with occupational health and the need to add incident cover.