Health and Safety Investigations Solicitors
Olliers Solicitors have a team of specialist regulatory lawyers with significant experience in advising individuals and organisations in relation to health and safety matters, including investigations and prosecutions.
What is Health and Safety law?
Health and Safety law in England and Wales is a combination of Acts of Parliament and statutory instruments, also known as regulations. The primary piece of legislation is the Health and Safety at Work etc Act 1974 (HSWA/ the 1974 Act).
Some sectors and particular work types have their own specific legislation and regulations, for example, those working in the construction industry must pay particular attention to the Construction (Design and Management) Regulations 2015, whilst those working with asbestos must also be aware of the Control of Asbestos Regulations 2012. Perhaps more commonly known examples include, the Control of Substances Hazardous to Health Regulations (COSHH) or the Management of Health and Safety at Work Regulations 1999.
The point is, however, no matter what industry, sector, legislation or regulation is applicable, at the centre of it all is the intention to ensure that employers discharge their legal responsibility to protect workers and others from risk to their health and safety.
Who enforces Health and Safety law?
The Health and Safety Executive (HSE) is the national regulator for workplace health and safety. The HSE working closely with other regulators and local authorities aims to prevent work –related death, injury or ill-health.
Health and safety affects all businesses from sole traders to multi-national corporations and covers a vast array of areas including, working at height; working in confined spaces; fire safety; gas safety; harmful substances; manual handling; noise; vibration, as well as corporate manslaughter and homicide to name but a few.
If you are facing investigation or prosecution for breaches of health and safety legislation, Olliers can represent you at each stage of the process providing valuable and robust advice.
Who is responsible for Health and Safety in the workplace?
Health and safety regulations apply across all industries and it is the business’ legal responsibility to minimise the risk of accidents, injuries and ill-health for not only their employees but non-employees too.
How can you create a safe workplace?
The HSE provides some useful guidance around how businesses may successfully manage health and safety in the workplace but it is important to note that health and safety is not a “one size fits all” situation and companies must therefore consider what health and safety means for their specific circumstances and take appropriate action to ensure compliance with the law.
That action should ordinarily include:
Preparing a health and safety policy
The law requires every business to have a policy in place to manage health and safety. For those businesses with five or more employees, the policy must be written down and although this is not compulsory for those with fewer than five employees, it is nevertheless sensible to do so as it could be very useful in the event of an incident and any subsequent investigation or claim against the company.
The policy should set out the company’s commitment and general approach to health and safety and how it will be managed in the workplace. The policy should also identify those individuals who will have specific responsibilities for health and safety within the business, including their positions and roles.
You should also ensure that the health and safety policy details the practical arrangements of how the policy’s aims will be achieved, for example through the use of risk assessments, signage or specific staff training.
Managing risks
Under the Management of Health and Safety at Work Regulations 1999, every employer is legally obliged to identify hazards that could cause injury or illness in the business. You must then decide how likely it is that someone could be harmed and how seriously. Finally, and as a bare minimum, you must take action to eliminate the hazard or if that isn’t possible you must control the risk.
As noted before, there is no “one size fits all” approach to managing health and safety and how this is achieved will inevitably depend on the nature of the business, the number of employees and also the resources available to do so.
However, some common themes to bear in mind when identifying hazards in any sector may include, how people work and how equipment is used; what materials and substances are used and what working practices exist. Reviewing records of previous incidents will also help identify less obvious hazards, as will talking to staff.
When it comes to assessing the level of risk, in addition to considering who might be harmed and how, you will also want to consider what you are already doing to control the risk and what further action needs to be taken, including by who and by when.
If you can’t get rid of the hazard, then as noted you must control the risk. This means that you must do everything reasonably practicable to protect people from harm which basically means balancing the level of risk against the measures needed to control it, taking account of the time, money and effort that will be involved.
This is an important qualification and should serve as a reminder to businesses, particularly Small and Medium –sized Enterprises (SMEs), that health and safety legislation and the regulations which stem from it are not there to over-burden your business and it is therefore much better to work towards compliance than face the enforcement consequences which may follow if you do not.
You should keep a record of the hazards, risks and controls that you put in place and keep them under regular review.
Information and training
Your employees are often your number one asset, so involve them. Everyone, including contractors and self-employed people must know how to work safely and for this to happen, it is important that you as the employer provide clear instructions and information, as well as, appropriate training and supervision.
Training should be tailored, where possible, to take account of new-starters, those with increased responsibilities or particular needs. Consulting and listening to those involved in the day to day running of your business will invariably lead to a more engaged workforce and could well help shape policies and procedures which reduce the risk of injury or illness even further.
Appoint a competent person
As an employer you must appoint one or more competent person to help you meet your health and safety obligations. Whilst such individuals are not required to have any formal qualifications or training they should have the knowledge, skills and experience to recognize hazards in the business and help implement controls to protect workers and others from harm.
Some organisation choose to appoint external consultants or advisors to this role but it is important to remember that the legal duty for managing health and safety remains with the employer.
Record and report accidents and illness
Certain workplace injuries, near-misses and work–related diseases must be reported to the HSE under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR).
This includes deaths, amputations, any injury likely to lead to permanent loss or reduction in sight, fractures other than to fingers, thumbs and toes, amongst other things. You must also report accidents involving members of the public or others which result in injury and the person being taken directly to hospital for treatment of the injury. A full list of all reportable injuries, diseases and occurrences can be found on the HSE website .
In more general terms, it is good practice to keep a record of all incidents and accidents, indeed you are legally required to keep an accident book if you have more than ten employees. Keeping such records may also be helpful in identifying trends and responding to the same and they could prove useful in the event of an investigation or claim against the company.
What if there is a Health and Safety incident?
If there is a reportable injury, occurrence or disease in the workplace or if concerns are raised by employees or indeed the public, about workplace practices and/or the management of health and safety, then you and your business might end up the subject of an HSE investigation.
Whilst an HSE investigation will seek to establish the cause(s) of any reported injury, incident or concern and what actions need to be taken to avoid a repeat, such investigations will also gather evidence which will be used to decide whether or not the company or any individuals ought to face prosecution.
If you do come under investigation, it is therefore important to seek legal advice and assistance at the earliest opportunity. Our team of experienced lawyers at Olliers will help guide you through the process and ensure that all steps are taken to achieve the best possible outcome. We will liaise with the investigators on your behalf and where required will attend any interviews under caution and/or submit written representations on your behalf.
The time between the start of an investigation and a file being passed over for a decision on whether or not to prosecute is absolutely crucial. It is the opportunity for the defence to go on the front foot adopting a proactive approach to pre-charge engagement with investigators. At Olliers, we will always look to make successful representations against charge and prevent clients being prosecuted, something we discuss in more detail here.
Do I have to pay for an HSE investigation?
HSE investigations can often be lengthy and complex. They can involve multiple site visits, expert witness reports, a multi –agency approach, interviews with employers, employees and contractors including by way of interview under caution. It is not unusual for it to take months and even years before an investigation is complete.
If the HSE do pay you a visit and find material breaches of health and safety laws, you will be required to pay for the time it takes them to identify what has gone wrong, as well as their time for helping you rectify any issues. This is known as a fee for intervention (FFI) and as of 1 April 2023 it is set at £166 per hour.
A material breach is something considered serious enough to warrant an inspector formally writing to you to require action to be taken to deal with the breach. If an inspector issues you with a Notice of Contravention (NoC) after their visit you will have to pay a fee.
In circumstances where an inspector simply provides you with advice (verbal or written), you will not have to pay for this advice.
What happens if the HSE decides to prosecute?
If the HSE decides to prosecute you or your business, it is important that you seek immediate legal advice and assistance. The team at Olliers have a wealth of experience when it comes to defending employers, employees and companies facing prosecution, so get in touch today.
The consequences of a conviction for health and safety offences can be far-reaching. In the most serious cases, the fines imposed can run to tens and even hundreds of thousands of pounds and individuals can face imprisonment.
Beyond that there is also the reputational damage; other businesses may not want to engage with those convicted of health and safety breaches and prospective employees are unlikely to want to work for a company with a poor record in terms of employee safety and wellbeing.
New contracts, particularly those issued by local government may be harder to come by and insurance companies may be reluctant to offer cover whilst those that do are likely to increase their premiums.
All of these factors could impact on the very survival of your business, therefore it is vital that you have appropriate legal advice to ensure the best possible outcome for the short, medium and long-term benefit of your business and personal life.
Click here to read more about the consequences of not taking health and safety seriously.
What types Health and Safety cases can Olliers assist with?
Olliers can provide specialist advice and representation in relation to:
- Health and Safety investigations
- PACE interviews including representation of companies/directors/employees
- Ongoing pre-charge engagement with investigators
- Enforcement, improvement and prohibition notices
- Representation at Magistrates’ and Crown Court proceedings
- Corporate manslaughter
- Corporate homicide
- Attendance at inquests
- Fire safety investigations and prosecutions
- Environment Agency investigations and prosecutions
Recent Cases
- Representation of general manager of leisure company following death at holiday camp
- Representation of safety officer at Sheffield Wednesday FC during police investigation into Hillsborough disaster
- Representation of G4S officers charged with manslaughter following death in deportation flight
- Represented a health and safety consultant subject to investigation following the death of an employee at a haulage yard where the consultant had conducted a risk assessment. Drafted written submissions to the HSE who subsequently decided not to take any further action against the consultant.
- Represented the owner of a house in multiple occupation (HMO) following a fire at their property. Attended the interview under caution with the local Fire Authority which was followed up by written submissions and resulted in the matter being dealt with by way of a caution.
Contact our Health and Safety Lawyers
If you are facing an HSE or indeed any regulatory investigation or the possibility of a prosecution and wish to speak to one of our team please contact us at the earliest possible opportunity for a confidential discussion.
Our regulatory team is headed by our Managing Director Matthew Claughton and other members include, Gareth Martin, Toby Wilbraham and Zita Spencer. Each of our specialists has substantial experience in dealing with a range of regulatory investigations and prosecutions, as well as, complex criminal cases.
Contact us by telephone on 0161 8341515, email info@olliers.com or complete the form below and one of our lawyers will contact you.
