Safety incidents: preparation is key

The impact of a serious workplace accident is multi-faceted and, certainly initially, none of the resulting effects are good. They are not good for those involved, not good for their loved ones and not good for their colleagues, their managers and those running the organisation. And it is this human impact – and the quest to avoid it – which keeps health and safety professionals motivated. Hence, the call that “no one should be injured or made ill at work”.

Beyond both the immediate and then longer-lasting human consequences, a huge array of organisational, commercial and reputational effects will quickly become evident. There will be a lot to think about. Have you identified and removed the risk? Have you secured the (crime) scene? What remedial works are needed? Can you still operate? Can you meet customer demands? Are the media aware? Is the incident on social media? The list is almost endless.

In amongst this swirl of competing demands, the need to prioritise is vital. There is a very close correlation between a business’s approach to incident management and how regulators and the courts will reach decisions about apportioning blame, culpability and penalties when the final analysis of the circumstances and the incident is made.

As a result, there are key steps I will always advise an organisation to take:

• Prepare: an organisation that plans for and models the scenario in advance, with accompanying procedures and training of staff, will always respond better than one that prefers not to think it will ever happen to them. Incident response planning is neither an admission of guilt nor an acceptance that a serious accident is inevitable. Equipping colleagues with the tools to deal with the competing and stressful demands is sensible business planning, particularly in higher risk sectors.
• Advance planning has other tangible benefits: often clients tell me that the process of incident response planning helps them to identify compliance gaps they hadn’t previously spotted. Others see a real shift in staff behaviours as a result.
  
  
• Seek legal advice: experienced health and safety solicitors have lived the regulatory investigation with clients time and time again. Their skill and judgment in guiding you through the process should not be undervalued. A good lawyer will ask you to investigate the incident so they can advise the organisation about potential liabilities but also about how to respond responsibly while also protecting the business and its people. Done in the right way, this process attracts ‘legal privilege’, meaning the resulting report remains confidential and is not required to be disclosed in criminal or civil proceedings. However, this can only be initiated by a lawyer.
  
  
• Investigate: as the employer, you are best placed to find out first what – if anything – has gone wrong. You know more about the business than anyone else and the experts in the process may well be your colleagues. Quickly identifying a core team with sufficient knowledge and independence and then equipping them with the resource they need is key.
• Where there is a gaping compliance gap, close it! If your investigations reveal the need for something more, do it. Yes, this may highlight to parties like the investigating authorities and insurers what was missing before, but it also avoids a repeat occurrence.
  
  
• Set a strategy early, but keep it under review: your internal investigation and legal advice will help set the tone of your response. They will tell you if you have a defence or, if not, the extent of any liability and how this is best identified and presented.
  
  
• Manage the regulator: serious incidents will attract regulatory attention. In fatal accidents, the police will take the lead. First impressions count, as do the second, third and all those that follow. Appoint a single point of contact who will be the first port of call for the external investigators. This allows the business to maintain a reliable overview of what is happening while also making life easier for the regulator. So, be prepared to arrange witness interviews, book meeting spaces for those interviews, gather and provide copies of the documents requested and keep copies of those documents for the business. All simple administrative tasks but key to displaying a responsible reaction to the incident while also maintaining a comprehensive overview of what is happening in the investigation.
  
  
• Manage expectations: decision -makers need sight of what is happening, what is required and – importantly – when it is needed. Managing communications with regulators is a vital component in demonstrating that the business is co-operating with their investigation. For example, if you can’t do something immediately, tell them how long it will take and assure them you are working on it. This will help to avoid you being served with compulsory notices to produce information.

The duties imposed on employers by health and safety law are burdensome and rightly so. Proving that your organisation met the required standard can be tough and in reality is not achievable in the majority of cases. The Health and Safety Executive achieves convictions in 95 per cent of the prosecutions it pursues.

Regardless of whether you ultimately defend a case or plead guilty at the first opportunity, robust, thoughtful and proactive incident management will always pay dividends. This might be in successfully arguing against a prosecution. It might be in limiting the number of charges. It might be in reducing the very significant financial penalty the court might otherwise order.

But above all it will demonstrate your organisation has acted in a responsible way, in seeking to prevent, prepare for and respond to the incident. This is important to everyone – the regulators, the courts, your customers and the general public. It is also of great importance to your employees, your managerial colleagues and those directly affected by the incident.

Rhian Greaves is legal director at DAC Beachcroft

Contact Rhian Greaves: www.dacbeachcroft.com

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