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Serious incident in the workplace – What are your chances of prosecution?

Serious incident in the workplace – What are your chances of prosecution?

An incident which causes serious injury in the workplace is likely to require reporting to the HSE under The Reporting of Injuries Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR). A RIDDOR report will be passed to the relevant regulator which will be the HSE, Local Authority or industry specific regulators such as the ORR. Failure to report when required by the regulations to do so is a criminal offence.

RIDDOR reports will be reviewed by the regulator and a view taken on whether to investigate further. If there has been a significant injury, then investigation is more likely but other factors will be relevant such as your RIDDOR record – is this the first report of its kind or one of several? Have you been prosecuted before? Is your workplace or was the accident of a type that is under particular scrutiny?

The HSE’s annual business plan will outline each year what its current priorities are but the statement common to each year, as currently expressed, is that,

“We will concentrate on the most serious risks and target industries with the greatest hazards, and sectors with the worst risk management record.”

Even if there is an incident that is investigated for possible enforcement action, prosecution is not a foregone conclusion. The business may not, for example, have committed an offence. The incident may have been despite all reasonably practicable steps being taken to ensure health and safety. Just remember though, that the burden of proof is on you to prove this.  It is worth thinking through how you would achieve this, in the event of an incident. Good risk assessments, policies, and procedures supported by training is one possibility. Compliance with relevant HSE guidance or Approved Codes of Practice is another.  Independent audits from which any identified actions have been implemented are also compelling evidence that will support you.

A strategy used to good effect on occasion can be to instruct an expert to review the specific work/machinery involved in an incident without being given any prior information about what has happened. This enables them to consider without the benefit or influence of hindsight bias, whether they feel that the business is compliant with its health and safety duties and obligations. This in turn can on occasion dissuade a regulator from further action against the business, especially as that regulator cannot claim their view has not been influenced by hindsight bias.  Injuries sustained can be enormously prejudicial to a prosecution decision, but legally should not determine whether or not there is liability – injuries should be relevant only if guilty of an offence, to the sentence imposed. Even if prosecuted, this kind of objective evidence without hindsight bias can also help the Court in determining that the offence should be in a lower culpability bracket for sentencing which makes a very material difference to any fine imposed.

Even if there is a breach of a health and safety duty, prosecution may not be the outcome. Inspectors have a range of options available to them. Enforcement Notices are a common alternative to prosecution. These take one of two forms:

  • Improvement Notices.
  • Prohibition Notices

Breach of the terms of an Enforcement Notice is a criminal offence but there is a limited (21 day) period in which an appeal can be brought which might suspend its impact pending determination by a tribunal, and an appeal can successfully dismiss the Notice or revise its terms.

Improvement Notices normally require action to be taken to achieve compliance within a defined period, and can be deployed by inspectors even when there is no risk of injury arising from a breach. Prohibition Notices are usually of immediate effect, preventing, for example, the use of specific machinery, until rectification work has been completed.

The HSE also has the power to serve invoices for its time (currently £166 per hour per inspector) for investigating and advising on what needs to be done to achieve compliance. These are called Fees for Intervention – sometimes called ‘FeeFI’. The HSE will normally preface these invoices with a Notice of Contravention which confirms the advice given and areas in which it feels you may not have been meeting your duties. The time charged may start from the moment a HSE Inspector observes the alleged breach of duty.

Prosecutors have limited resources, so prosecution is normally reserved for the most serious cases. For context, in its Annual Report and Accounts for the year to 31st March 2023, it is noted that in the 12 month period, over 230 fatal and 5500 non-fatal incidents were investigated and over 16,800 proactive inspections (i.e. not in response to an incident)  were completed.   In the same period, the HSE completed 216 prosecutions (with a 94% conviction rate) and served 6,000 improvement notices and 2,000 prohibition notices.

Where there is a risk of prosecution, there is much you can do to manage that risk even after an incident, particularly through:

  • Cooperation with the investigation, involvement and interest in that investigation from a senior level in the business
  • Ability to demonstrate health and safety is taken seriously and led from the top down
  • Efficient provision of documentation requested as part of an investigation (which presumes of course that such documentation is in place and is clearly used and well communicated across the business as necessary)
  • Judicious use of independent expert audits and reports to demonstrate compliance.
  • Attitude displayed throughout an investigation to health and safety and, very importantly,  support for anyone injured

It is also important to be proactive – not just in trying to prevent avoidable injuries, but also in not waiting to be told by a regulator post incident what needs to be put right. Begin your own investigation without delay – though if you have been directed not to disturb or move or use equipment you must comply with that.   There is nothing wrong though, with an interim report clearly identifying changes to be made pending a final report when closer examination is permitted and assumptions regarding causation can be verified, and a fresh risk assessment which takes account of what has happened and considers the practicability of further risk management controls that would avoid recurrence.  Being pro active in this way can also help you to avoid an enforcement notice, by removing the justification for an inspector’s belief that there is an ongoing risk.

In addition to audits and advice to prevent missed risk management controls, if things do go wrong, Finch Consulting provides support in the form of legal, consulting, and expert advice in exactly these circumstances.

If you need such assistance contact Dom Barraclough at Finch on 07525 235027 for a preliminary no obligation chat in the first instance, and he will direct you to the relevant expertise within the business.

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