The Health and Safety Executive (HSE) and Local Authorities (LA) have wide-ranging powers in relation to the management and supervision of work place safety. All employers have a legal duty to ensure, so far as is reasonably practicable, the health safety and welfare of all employees. An employer is also under a duty to ensure that non-employees, like members of the public or visitors to site are not exposed to a risk of harm by the way in which a business is conducted. The same duties apply to self-employed individuals and the way they conduct themselves.
What is a HSE or LA investigation?
An HSE or LA investigation might start for a number of reasons; following a routine inspection, as a result of the emergency services being called to a workplace accident, following a report made by an employer in accordance with the duties under RIDDOR or simply because a complaint has been made.
Whatever the circumstances, the purpose of the investigation is to broadly determine whether there has been a breach of a relevant health and safety duty, and if so by whom and with what effect. Other relevant factors include lessons to be learned and what response is appropriate to any breach of the law identified.
Under the Health and Safety at Work Act etc. 1974, the HSE and Local Authority inspectors have significant powers to enable them to gather evidence and investigate breaches of legal duties an obligations. The investigatory powers of the HSE and LA inspector can be greater than those available to a police officer. For example, a HSE or LA Inspector can compel a person to provide them with information relating to a matter under investigation, a police officer does not have this power. As part of the investigation a HSE or LA inspector may demand the production of documents and take copies, take samples, photographs and much more. Obstructing an Inspector in the exercise of his or her powers is a criminal offence.
In almost every case, where an investigation is undertaken, there will be an interview under caution. This is a crucial and significant event and any person or representative of a business invited to attend a PACE meeting or interview under caution should always have appropriate legal representation.
An interview under caution is used to gather evidence against a person or business and must be handled appropriately and with the benefit of expert legal advice.
If you or your business is under investigation then you must take immediate and appropriate legal advice.
What happens in a HSE or LA prosecution?
Once the evidence gathering investigation stage is complete, a decision needs to be taken about what further action (if any) is required. In many cases this will lead to a prosecution for criminal offences. Some people wrongly think that breaches of health and safety duties are not taken that seriously. This could not be further from the truth. A proven breach of a health and safety duty is a criminal offence. It is dealt with in the criminal courts and if proven, will result in a criminal record and punishment. In the case of a business, that punishment might be an unlimited fine and in the case of an individual, an unlimited fine and a prison sentence.
The decision to prosecute is not taken lightly and a process must be gone through. Taking advice early might improve your chances of putting forward the strongest defence available as early as possible. This could be crucial in determining if the investigation advances to a prosecution.
Again, taking the advice of lawyers that specialise in criminal and regulatory law will be vital in managing both an investigation and any subsequent prosecution.
How will they impact upon your business?
An investigation or prosecution will inevitably have a significant impact on you or your business. If the HSE or LA Inspector issues an Improvement or Prohibition Notice it might stop your business in its tracks. Also, as a business owner or director you might be held personally liable for the breach of a duty. This could result in you facing criminal proceedings before the court. Whatever the outcome of the case, the process is bound to be distressing and disruptive. Add to this the impact on other co-workers following a serious workplace incident and you have a combination of factors that is bound to have a detrimental impact on you and or your business
How we can help
When you are dealing with the use of criminal investigation powers and techniques and the possibility of criminal proceedings before the criminal courts, why would you choose a lawyer unless they were experts in criminal law?
The lawyers in our Regulatory team are specialist in criminal and Regulatory law. They have years of experience dealing with the most serious criminal cases and are skilled at offering you the support and advice you need to deal with a HSE or LA investigation or prosecution. A quick look at our Recent Cases will give you a flavour of the breadth and depth of our experience in this complex and challenging area of law.
Amidst the Coronavirus outbreak, our team of Health & Safety experts are adopting Skype video calling to continue providing excellent legal services to you.
How to get in contact
For a no obligation, confidential discussion about your situation please call us on 0808 168 5550 or email Andrew Brammer is the Head of the Health and Safety and Regulatory team and can be contacted below.
We can represent you wherever you are based and we can meet you away from our offices. Cartwright King has offices in Birmingham, Bedford, Bolton, Derby, Leeds, Leicester, London Temple, London Fleet Street, Luton, Manchester, Middlesbrough, Milton Keynes, Newcastle, Northampton, Nottingham, Oxford, Sheffield and Worcester.
Cartwright King’s ‘excellent’ and ‘dedicated team leaves no stone unturned’ and offers a ‘comprehensive’ service to regional, national and international clients from a vast array of sectors. The group's strong track record spans fatal accident investigations, health and safety compliance and due diligence, and proceedings before the Coroner’s Court, the Employment Tribunal and the Magistrates’, Crown and High Court. The recent caseload shows an uptick in construction-related instructions regarding the management and handling of hazardous substances such as asbestos and lead as well as an increase in appeals against enforcement notices issued by the Health and Safety Executive. ‘Highly experienced and impressively robust’ practice head Andrew Brammer is known for his ‘tactical astuteness’ and ‘excellent attention to detail’. - The Legal 500