Health and Safety Legal Advice Following Fatal Work Related Incidents

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Finch Consulting’s Health and Safety Legal Expert Sue Dearden takes a look at what happens after a workplace fatality with focus on the often misunderstood role of the Coroner and Inquests, and provides some practical tips to help employers plan for and manage the consequences of a fatal incident at work.

Work related fatalities are, thankfully, not a common occurrence.

From a working population across the UK of more than 32.5 million[1], in 2018-2019, there were 239 recorded work related fatal incidents to workers and members of the public in Great Britain. A further 2,526 deaths were recorded as being due to mesothelioma resulting from past work related asbestos exposures.[2]

Because workplace fatalities are not an everyday occurrence, when they do occur, the parallel lines of enquiry that follow can be bewildering, putting affected employers on a reactive back foot and sometimes into a state of inertia which can compound the issues they face.

Post Incident Priorities

  • Not every fatal injury is immediately fatal. First concerns should always be with medical care for those injured, and a rapid assessment of what has happened to ensure safeguards are deployed to avoid further risk of injury.
  • The bereaved next of kin need to be notified. The police will do this if you do not have the necessary information. If you can establish a line of contact with family members it is usually a good idea to have a single liaison point in the business through whom a two way dialogue can be developed to support the family.

Psychiatrists often refer to the Kübler-Ross five stages of grief which begin with denial and end with acceptance. The second stage of grief is anger. That anger is often directed at an employer when the incident has been at work.  Listening to the family and offering support and sympathy are not an acceptance of guilt, but fear about engagement often immobilises business and prevents compassion being shown to a bereaved family, creating an impression of aloofness and lack of care which can stoke and prolong the anger phase.

The incident could well have been entirely the fault of the deceased, but the family has still lost someone they loved. Have a plan. Be sympathetic. Be supportive. If on subsequent investigation an employer is at fault for what happened, how the business has dealt with a bereaved family while investigations establish the facts, can influence decisions on claims, press coverage, and mitigation.

  • RIDDOR notification. Under regulation 6 of the Reporting of Injuries, Diseases and Dangerous Occurrence Regulations 2013 (“RIDDOR”) when anyone (employee or otherwise) dies as a result of a work-related incident, the relevant authority must be notified “without delay”. This can be done online through the HSE’s website
  • Insurance notification. There are usually policy conditions requiring incidents that may lead to claims being reported as soon as possible to the insurer. Employers’ liability policies are relevant if an incident kills an employee or labour only sub-contractor; public liability policies are relevant if anyone else has sustained fatal injuries through the conduct of your business.
  • Internal Investigation. There will be a number of investigations that proceed – but don’t forget your own. The investigation and analysis of work related incidents are an essential part of health and safety management.

Regulation 5 of the Management of Health and Safety at Work Regulations 1999 requires every employer to make and give effect to appropriate health and safety arrangements which include appropriately reviewing preventative and protective measures. Some investigation is also needed to facilitate compliance with recording requirements under RIDDOR. Part 2 of Schedule 1 of RIDDOR requires an internal incident report to include a description of the circumstances in which a reportable incident happened.

Be aware that internal incident reports will become available to the bereaved and to external investigators. Often, zeal for a meaningful internal report to make sense of what has happened leads to an overly self-critical indictment of process and/or people which is likely to be used against you later.

A comprehensive investigation and report over which you can keep control, is possible through the engagement of solicitors like the Finch Consulting legal team which, working in conjunction with former HSE inspectors and engineers can investigate and advise on potential legal liabilities from which appropriate actions can be extrapolated without compromising the privacy of the report or liability, and will advise you on strategy to help keep you maintain some control over what is often a rapidly evolving position.

Parallel Investigations and their purpose

  • The police will investigate workplace fatalities to establish whether or not any manslaughter charges should be considered.
  • The HSE or local authority (or other enforcing authority depending on your business will investigate health and safety statutory and regulatory offences.

These two lines of criminal investigation will usually be conducted side by side.  The police assume primacy, but they will work together under the Work-related Deaths Protocol. You will have legal duties to co operate with these investigations, provide access to your premises/equipment and to relevant documentation and materials.  Statements from witnesses may be compelled. Where there is evidence to support a charge against an individual or business the suspect must be invited to an interview under caution or in some cases for corporates invited to comment before they can be charged.  There is no obligation to attend that kind of interview but if a defence is not put forward at that stage on which you late want to rely, the failure to raise it then may be prejudicial.  Legal advice on your position is strongly recommended before proceeding.

Insurers may be required to pay your legal costs to help you deal with any criminal investigation or subsequent prosecution but your right to choose your lawyer is protected by law. An insurance appointed lawyer with a vested interest in keeping the insurance costs (your defence costs) down, is not always going to align with your best interests. Your policy should cover your choice of lawyer.

  • Your Insurers will investigate, often through loss adjusters who they appoint, or through one of their panel solicitors. The purpose is to advise your insurers (usually in a written report) on what has happened and what every claim might cost your insurers. This enables them to allocate a funding reserve to the matter.

Insurers are looking for an estimate of their liability – compensation payable, claimant and defence costs.

Do not confuse this investigation and report with an investigation with your interests at their core. Your primary concerns are likely be:

A. Ensuring that the incident cannot be repeated (learn from what has happened and review risk controls)

B. Limiting the business impact of the incident (reputational damage/consumer and supply chain confidence) and restoring employee confidence and productivity

C. Potential criminal charges (under investigation by the police and regulator) which can lead to very substantial fines on conviction (an issue for you, not your insurers)

  • Potential Claimants. Your insurers would normally liaise with legal advisors for potential claimants and once represented, family members may elect to withdraw from direct liaison with you. There is though no legal reason to cease communication with them if communication can remain open. Do though work with your insurers on this to ensure that their interests are not compromised. If you can maintain any dialogue developed to that point, it is usually more helpful to your longer term interests.
  • Coroner’s Investigation. All deaths in the UK must be registered within 5 days (8 days in Scotland). Doctors or Registrars will report a death to a Coroner when the death was violent or unnatural which will normally be the case with a workplace death.

Coroners are independent judicial officers, responsible to the Crown but  employed by a Local Authority. Coroners have a role determining how deaths reported to them will be investigated, and to preside over investigative hearings called Inquests which they can convene.

Coroners’ investigations may be very brief. If a Doctor signs a medical certificate or a post-mortem report confirms death was due to a medical condition then the Coroner may do nothing more. This may happen for example, when a workplace incident is caused by unrelated heart failure. For most workplace deaths however, an Inquest in the Coroner’s Court is usually held, and this process will run in parallel to the other investigations and actions following a workplace death.

Purpose of an Inquest

 Inquests are a non adversarial process in which the Coroner’s remit is:

A. To reach a determination on who has died, and how, when and where they died.

B. To investigate the fuller circumstances which led to death If the State may be implicated (e.g. through NHS medical treatment; or because a public authority had commissioned work which led to the incident). This is known as an Article 2 Inquest (or a ‘Middleton’ Inquest) because under the European Convention on Human Rights, State signatories have a duty (under Article 2) to protect life and refrain from taking life. This has led to the acceptance of a duty to fully investigate any death in which the State may be implicated, and an Inquest is frequently used as the means by which that duty is met. In practice however, even where the inquest does not engage Article 2, nowadays most inquests involve a wider investigation to answer questions about what led to death and help the family in particular to understand all of the circumstances, rather than simply a look at the final act causing death. The wider issues are always funnelled down during the process though, to answer the narrower “how” question in the determination.

C. To identify findings required by the Births and Deaths Registration Act 1953

D. To reach a “conclusion” as part of the determination. This used to be referred to as the verdict, but that term has been abandoned as being too pejorative with its criminal connotations. Whilst a conclusion may identify factual acts or omissions and (particularly in Article 2 inquests) may make findings of fact, it will not attribute or apportion blame. There are a number of short form conclusions that can be used e.g. accident, natural causes, or unlawful killing but more usually this ‘short form’ is accompanied by a brief factual narrative about what happened.

The Coroner will normally open and adjourn an Inquest (to allow release of the body for burial or cremation) and usually reconvenes either when there is a provisional decision not to prosecute, or a prosecution has concluded. A coroner may also reconvene an inquest whilst the criminal investigation by the HSE (or LA) is still ongoing. Because this is an inquisitorial process there are no “parties” in Court. Those with a legitimate interest in the proceedings (including an employer whose employee has been killed at work) are called “interested persons” and they have the important right to see the evidence and question witnesses. It is the Coroner, not the interested persons who determines what is relevant to the Inquest and which witnesses will be called to give evidence, but because there is a dialogue between the Coroner and the interested persons or their legal representatives it is often possible to “suggest” relevant evidence which will form part of the materials.

To What Extent Should You Engage in an Inquest

For any employer whose business may be implicated in a death, it is important to seek competent specialist legal support, and not to make the mistake of dismissing an inquest as an unimportant part of the process because it is inquisitorial. Just because there will be no finding of blame by the Court does not mean that blame will not form a significant part of the questioning of witnesses and agenda particularly by representatives for an affected family.

Witnesses give evidence under oath so reports of what they say can be referred to in other proceedings subsequently, and frequently claimants attend as interested persons and use the opportunity to test the evidence and a potential claim. Prosecutors will also generally attend to hear the evidence which can lead them to reopen or redirect further enquiries they make subsequently. Provisional decisions not to prosecute can be reversed following the evidence heard at an inquest and indeed if there is an unlawful killing conclusion the police must reopen consideration of manslaughter charges. If you don’t engage in the process you miss the opportunity to redress any imbalances in the evidence and avoid damaging adverse findings of fact that may impact you in other forums. Depending on the incident you may also find yourself playing catch up to adverse press impacting your business.

Engagement may also help you to avoid a prevention of future death (“PFD”) report. Coroners have a legal duty under schedule 5 paragraph 7 of the Coroners and Justice Act 2009 to refer concerns which arise from their investigation, of the risk of further deaths to those they believe have the ability to take action, to try and minimise the risk of future deaths occurring. Sometimes referred to as Regulation 28 reports as that regulation in the Coroners (Investigations) Regulations 2013 prescribes what happens to a PFD report, these can be published on the Chief Coroner’s website and can also generate adverse press. If steps can be taken to proactively address any likely concerns, these reports are generally avoidable.

In Summary

Because workplace deaths are relatively rare, it would be unusual to find a business fully acquainted with the investigative processes that follow and which may impact in a number of ways, not all of which will necessarily have been anticipated. That does not mean that you shouldn’t plan for how such an eventuality will be managed. This overview may assist with that process and assist you in ensuring that where possible you  retain some strategic control and avoid the pitfalls, but if you do have any questions or need more information on any of the matters raised please do get in touch.

Sue Dearden

Susan.dearden@finch-consulting.com

07909 682688

[1] Office for National Statistics

[2] HSE Statistics www.hse.gov.uk/statistics/