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CHSG18 July 2012
An Inspector Calls
Sean Elson
Pinsent Masons LLP
07734 225317
This afternoon
• Why does this matter?– Large fines – going out of business– HSE Fee Recovery – more invoices– Individual liability – Prison
• How should we manage this?– Awareness– Training– Process & procedures
Pinsent Masons
• National H&S team across whole of UK• Multi-disciplinary team including in-house barristers and
Chartered IOSH H&S Practitioners• International construction reputation• Representing clients in post accident
investigations/prosecutions –often fatal incidents• Before the event non-contentious legal H&S advice• Instructed by clients but often supported by insurers
The context
• No-one expects to have an incident• Are we as good as we think we are (have we tested
that)?• HSE pro-active inspection regime to be aimed at smaller
contractors• This all happens quickly and in real-time – responding at
a point of crisis can seriously affect how things end
Were you sitting comfortably?
• The number of convictions of individuals is rising• Temperature increased by Corporate Manslaughter Act• 400% increase in prosecutions under s.37 in last 5 years• 43 prosecutions under s.37 HSWA in 2010 – 2011• In 21 cases where no incident of any kind had taken
place• In 2005-06 there were 10 prosecutions under s.37!• HSE just announced prosecution of 2 police officers for
training fatality involving firearm
The Hard Yards
• Are safety building blocks in place?– Risk assessment– Method statements– Inspection records– PPE and welfare
• If not then already have one hand tied• But – if we do, that’s expected and cuts little ice • Systems for responding to incidents/inspection visits• Insurers on board
The Inspector calls
• Establish who and what for?• Meet and greet arrangements• Identification?• Noting conversations?• Shadowing the Inspector• How does it differ if it’s the police?
What do they want?
• A walk around?• An investigation – of whom/of what?• To examine documents?
– RA’s and the like– Site plans– Inspection records– Training materials
• To speak to people?– Informal discussion?– Formal interview – if so what type?
Common Mistake No.1
“It’s not us they’re looking at – it’s the other fella”
Document requests
• HSE has power to take copies (or remove to take copies)
• Does not extend to legally privileged material• Voluntary/s.20 Health & Safety at Work Act• Obstruction offence • Try to ensure that only copies are taken away• Log what has been provided• Preserve documents in time
Informal discussions
• Quite common – “banging heads together”• Can resolve issues quickly and cheaply• May involve follow up correspondence• Take care – be aware of the bigger picture –
enforcement action may also be planned• This will in the future be part of the HSE fee recovery
scheme
Common Mistake No.2
An enforcement notice means the end of it
Interviews with individuals
• Inspector may ask you to identify who they should be speaking to
E.g. “Who is responsible for the lifting plan?”• Discussions may be informal• Could become witness statements• May become interviews under caution at a later date• Take care in identifying the right person responsible for a
certain aspect of activity• How to support individuals?
Interviews
• Nothing is off the record but there are informal discussions
• In enforcement cases HSE will take witness statements for individuals to sign
• Powers to compel people to answer questions - s.20 HSWA – legal right to support in interview
• PACE Interviews – usually by letter of invitation– Of the business or individual?– Right to legal advice– No need to attend at all – good idea or bad?
Practical stuff
• Internal policy or protocol for responding to interventions – at least think about it
• Appoint someone to lead on the response and agree with HSE
• What about closed sites and plant off limits?• Is insurance in place – who will advise you/retained
advisors?• Document registers• Preserve documents and photograph key issues• Be careful what you create post incident
Smoking guns
• Post incident communications– Notes on site/site diary– Emails– Memos etc
• Accident investigation reports– Be clear about the process before setting off– Should it be legally privileged – what does that mean?
• Non legally privileged material discloseable to HSE/Personal injury lawyers etc
• Any contractual provision for disclosure e.g. To PC
Common Mistake No.3
“We’ve had an accident – quick, start investigating!”
Fee for Intervention
• Changes the relationship between HSE and duty holders• How to meet the challenge?
– Importance of meet and greet– Understand the regime– Can it be headed off/mitigated
• Templates for response and/or appeals?• Watch this space for CHSG training!
Common Mistake No.4
“We have a good safety record and take H&S seriously – surely they won’t take action against a business like ours”
Summary
• Hope for the best – expect the worse & plan for it• If an Inspector calls understand the context & the
consequences• Plan the response to an incident as you would plan a
project
Combining the experience, resources and international reachof McGrigors and Pinsent Masons
Pinsent Masons LLP is a limited liability partnership registered in England & Wales (registered number: OC333653) authorised and regulated by the Solicitors Regulation Authority, and by the appropriate regulatory body in the other jurisdictions in which it operates. The word ‘partner’, used in
relation to the LLP, refers to a member of the LLP or an employee or consultant of the LLP or any affiliated firm who is a lawyer with equivalent standing and qualifications. A list of the members of the LLP, and of those non-members who are designated as partners, is displayed at the LLP’s
registered office: 30 Crown Place, London EC2A 4ES, United Kingdom. We use ‘Pinsent Masons’ to refer to Pinsent Masons LLP and affiliated entities that practise under the name ‘Pinsent Masons’ or a name that incorporates those words. Reference to ‘Pinsent Masons’ is to Pinsent
Masons LLP and/or one or more of those affiliated entities as the context requires. © Pinsent Masons LLP 2012
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