Reporting a health and safety incident
The provisions of the Reporting of Injuries Diseases and Dangerous Occurrences Regulations 1995 (commonly referred to as RIDDOR) make it a duty to report deaths, major injuries and dangerous occurrences to the relevant enforcing authority.
- In the case of workplace accidents, the duty to report generally falls upon the employer (or self-employed person).
- The relevant enforcing authority is usually the HSE for accidents at work, although for accidents in the leisure and retail industry it is usually the local authority.
- The report must be sent within 10 days.
- The effect of RIDDOR is that the person who has a duty to report the accident often ends up being the person who is subsequently investigated.
HSE investigations
Not every accident or suspected breach of a regulation is investigated by the HSE; it simply does not have the resources to do so. In making the decision as to whether or not to investigate, and if so, what level of resources to deploy, the HSE will take into account a number of factors:
- The severity and scale of the potential harm.
- The seriousness of any potential breach of the law.
- Knowledge of the dutyholder’s past health and safety performance.
- The enforcement priorities.
- The practicality of achieving results.
- The wider relevance of the event, including serious public concern.
This means that investigations are more likely to take place in relation to cases of death and serious injury, and/or where the employer has a bad record for health and safety matters, and/or where there is a wider public interest in an investigation.
The investigator’s powers
Health and Safety Inspectors have a wide range of powers, including the powers to:
- enter premises;
- take measurements, photographs and samples, and seize certain materials;
- require documents to be produced and copied;
- compulsorily question individuals.
However, a health and safety inspector does not have a general power of search and seizure. Therefore, a search of premises may only be undertaken by a health and safety inspector with the consent of the occupier.By contrast, if the police become involved they do have general powers of search and seizure under the Police and Criminal Evidence Act 1984 (PACE).
There are limited and exceptionally rare circumstances in which a health and safety inspector may exercise a power of arrest.
Offences of breaching one of the general duties under sections 2 to 7 of the Health and Safety at Work Act and offences of breaching a provision of a health and safety regulation can be tried in either the Magistrates’ Court or the Crown Court.
Police powers
The police will generally only become involved in a health and safety investigation if the investigation is a joint police/HSE investigation into potential gross negligence manslaughter, or corporate manslaughter, following a work-related death.
The police may arrest an individual on the basis that the arrest ‘is necessary to allow the prompt investigation of the offence or of the conduct of the person in question’.
Following arrest, the police may conduct an interview under caution. Anyone who finds themselves in this position is strongly advised to contact their lawyer as soon as possible.
The police also have general powers of search and seizure of documents.
Safeguards
Health and Safety Inspectors who are investigating potential offences are bound by the same PACE Codes of Practice as the police.
These codes provide essential safeguards for those who are being investigated on suspicion of having committed an offence.
The Codes of Practice are, themselves, very extensive and detailed. However, the key points in practice are as follows:
- An inspector must state that there is no duty to consent to a search.
- Written consent must be obtained from a person entitled to grant entry to premises.
- A complete record of any search must be made and kept.
Before any questions are asked of a suspect, which the inspector may seek to rely on in the future, a caution must be given first. The caution states “you do not have to say anything, but it may harm your defence if you do not mention when questioned something you later rely on in court. Anything you do say may be given in evidence.”
Before any interview, the suspect must be informed of the nature of the offence. An accurate record must be made of any interview, including the place, times (including breaks), persons present, and a written record will be made which must be accurate if not verbatim.
Failing to co-operate with an investigation
Employers should ensure that they make every effort to co-operate with a health and safety inspector since failing to do so can amount to an offence in itself. In particular, actions such as:
- obstructing an inspector;
- contravening a requirement imposed by an inspector;
- preventing another person from co-operating with an inspector;
- knowingly making a false statement to an inspector;
can all be treated as failure to co-operate under Section 7B of the Health and Safety at Work Act 1974.
“It shall be the duty of every employee while at work…as regards any duty or requirement imposed on his employer or any other person by or under any of the relevant statutory provisions, to co-operate with him so far as is necessary to enable that duty or requirement to be performed or complied with.”