Recent changes in the law have meant that it is getting easier to successfully prosecute for breaches of health and safety law.
With penalties dramatically increased by legislation, many relatively minor offences can now be punished by significantly greater fines and imprisonment.
A health and safety inspector can visit any workplace without giving notice. However, they will usually phone ahead to ensure that relevant staff are available. Remember, workplaces include both work premises and homes of employees who work from home.
Inspectors have the authority to:
- Require any person to answer questions if there is reasonable cause to believe they hold relevant information;
- Direct that premises should be left undisturbed for as long as is reasonably necessary;
- Take measurements, photographs or samples of anything in the premises;
- Take possession of anything for so long as is necessary and to ensure they are available for legal proceedings;
- Dismantle anything which is likely to cause danger to health and safety;
- Require the facilities and assistance necessary for carrying out their powers; and
- Issue an improvement or prohibition notice.
If there has been an incident resulting in a fatality at work, the police will also investigate and will be one of the first on the scene. They will be looking for evidence of individual manslaughter and/or corporate manslaughter.
Obstruction of justice
Obstructing inspectors in their enquiries can result in prosecution, leading to a fine or even imprisonment. This can be interpreted widely - from physically preventing an inspector from exercising their powers to refusing to provide information.
It is also an offence to prevent or attempt to prevent a person answering questions or appearing before an inspector.
However, do not be afraid to ask questions of the inspector. Health and safety inspectors can serve formal legal notices requiring you to take certain safety measures or cease a certain activity.
These notices have legal force, and while they can be appealed through the Employment Tribunal system, failure to adhere to them can lead to prosecution.
If under investigation, you need to appoint a single point of contact. This should allow for proper management of the relationship and ensure that there is no confusion over arrangements made with the inspector.
Ask questions - it is important that you fully understand what is going on when an inspector visits.
For the record
It is crucial that you retain a written record of what information or items are taken.
If possible, provide the inspector with copies and retain originals. Be cooperative and helpful but be aware that any information, items or statements taken may be used in evidence against you.
Make a written note of any meetings or important discussions with the inspector. This may prove to be very helpful if there is later any dispute over your cooperation or other significant matters. If something particularly important is agreed with, ask them to confirm it in writing.
If the inspector proposes to take witness statements from employees, seek to ensure that those employees being interviewed have a representative of the company in attendance at the interview with them and ask for a copy of their statement.
You must also understand the nature of the interviews being conducted. There are different types of interviews with very different legal implications. You need to seek legal advice and representation for certain types, such as interviews under caution.
If requests for information, documents and/or items are made by the inspector, ask for a reasonable amount of time to comply with those requests. This will also provide you with an opportunity to seek legal advice if necessary.
Begin your own investigation. You know the workings of your business far better than any inspector and you will be able to determine what happened far more quickly.
Try to develop a good rapport with the inspector. The more reasonable you appear, the more likely the inspector is to be reasonable with you.
Paul Burnley is a partner and Poppy Williams is a solicitor in the Litigation and Regulatory Group of DLA Piper UK LLP