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When the (H&S) Inspector Calls…Rebecca Carriage
Howes Percival LLP
20/04/23 1© 2012 Howes Percival
What I am going to cover
20/04/23 2© 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?
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• 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)
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• 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)
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• S 25 – imminent danger:
– Seize or render harmless if believes cause of imminent danger of serious personal injury
Inspectors’ Powers (3)
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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)
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• 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)
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• 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)
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• Tell your insurers
– Criminal penalties/costs/your costs/compensation orders?
Interviews under Caution (1)
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• 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)
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• 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)
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• 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)
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• 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 www.safequarry.com
• 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)
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• 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)
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• 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
rebecca.carriage@howespercival.com
01603 580084
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