When an HSE inspector calls

Sadly, construction worker fatalities continue to rise in the UK. The recent annual Health and Safety Executive (HSE) statistics show that construction worker fatalities are 70 percent higher than pre-covid levels, whilst across other industries surveyed, the statistics were broadly in line with pre-covid levels.  The construction industry remains the most dangerous sector to work in despite a continuous programme of health and safety awareness campaigns. Approximately 64,000 construction workers suffer non-fatal injuries each year and work-related injuries and ill health cost the construction industry approximately £1.3 billion per annum. As part of our ‘Health and Safety at Work Act – 50 years on’ feature, Jo Lewis, Michael Salau and Daniela Miklova summarise the HSE’s investigation process and outline practical steps for commercial practices to take during an investigation.

The Health and Safety Executive

The HSE is the national regulator for work related health and safety. It has the power to enforce regulations, stop dangerous operations and prosecute where there are breaches of legislation.

An HSE inspector will normally attend an accident location when a work-related accident, ill-health or dangerous occurrence has been reported. The police may also be involved if there has been a fatality. Whilst HSE inspectors have various powers, it is important to note that they do not have a general power of search, nor can they obtain a search warrant. However, the HSE have the power to require the production of documents and the provision of answers to their questioning. HSE inspection methods include a combination of observing work activities, practices and conditions, discussions with owners, directors, managers and workers and examining a plant, systems of work, procedures and relevant documents. The main purpose of HSE investigations is to establish the cause of the incident and whether enforcement action is appropriate.

Preparing for investigation

The HSE’s policy is to conduct an investigation solely to the extent of meeting their regulatory functions and the legal requirements for criminal investigations. Therefore, inspectors are continuously evaluating whether their policy objectives have been satisfied during their investigation. The initial step of the investigation is gathering relevant information about the dutyholder (a person who has to any extent control, of premises), which involves establishing the facts and immediate causes of the incident.

It is important not to obstruct regulatory investigations when information and/or documents are requested -The HSE have prosecuted individuals for doing so. We have outlined below practical steps that commercial practices can take to prepare for an investigation by the HSE and/or police in respect of a health and safety incident.

Set up a point of contact

It is recommended that a single point of contact is appointed to liaise with the HSE or police and respond to requests for information or general queries during the information gathering stage of the investigation. A single point of contact will ensure consistency and continuity across the investigation in relation to the information that is provided and received.

It might be preferable to nominate a senior person within the commercial practice as the point of contact for press enquiries, the HSE or police.

Requests for documents from HSE or the police

The police and HSE have the power to seek documents following a health and safety incident and recipients of documents requests have a duty to co-operate with the investigating authority.

It is important to note that documents that are covered by legal privilege may not be disclosable in subsequent criminal or civil proceedings. Legal privilege is protection afforded to communications that are made for the sole or dominant purpose of giving or receiving legal advice between a lawyer and a client. Therefore, there is a benefit to involving in-house or external lawyers from the outset of the investigation, particularly if a written statement or report is prepared for the investigation.

If in doubt, we recommend that where lawyers are involved, new documents and correspondence pertaining to the investigation should always be marked ‘Legally privileged and confidential’ or ‘In contemplation of legal proceedings’ and kept limited in terms of circulation.

Requests for interviews or statements

Where possible, it is useful to obtain a list of questions that will be asked at interview in advance of agreeing to attend. This provides the opportunity to consider whether to attend the interview or provide a written statement instead. Note that you are always entitled to be legally represented at an interview.

1. Informal voluntary chats

The police or HSE can seek to ask questions or have an informal chat, either over the phone or in person. As with a formal voluntary statement (see below), regulatory bodies cannot compel you to answer the questions as part of an informal chat and it is possible to request to have someone present before answering any questions.

2. Voluntary Statements – Statements provided voluntarily under section 9 of the Criminal Justice Act 1967 (“CJA”) (known as “s.9 statements”)

Both the police and the HSE can take s.9 statements.  A s.9 statement is taken from a person who has voluntarily given the statement. Under s.9 CJA, the contents of a written statement will be admissible, without the witness attending court to give oral evidence, if the following conditions are satisfied:

(a) the statement purports to be signed by the person who made it;

(b) the statement contains a declaration by that person to the effect that it is true to the best of his knowledge and belief and that he made the statement knowing that, if it were tendered in evidence, he would be liable to prosecution if he wilfully stated in it anything which he knew to be false or did not believe to be true;

(c) before the hearing at which the statement is tendered in evidence, a copy of the statement is served on the other parties to the proceedings;

(d) none of the other parties object to the statement being tendered in evidence; and

(e) The rules regarding the form of the witness statement and any exhibits are complied with (rule 27 of the Criminal Procedure Rules 2010).

If a witness declines to provide a voluntary statement, the HSE inspector can exercise its powers under section 20 of the Health and Safety at Work Act (“HSWA 1974”) to take a compelled statement.

If the HSE or police have grounds to suspect that a person may have committed an offence, they should not treat this person as a witness. Instead, the police should interview that person under caution instead (see below).  If a witness becomes a potential suspect while providing a witness statement, the interview must conclude and an interview under caution should be conducted instead.

3. Compelled statements taken under section 20 of the HSWA 1974 (“s.20 statement”)

An HSE inspector has the power to require any person to answer (in the absence of persons other than a person nominated by him to be present and any other person whom the inspector may allow to be present) such questions as the inspector thinks fit, and to sign a declaration as to the truth of his answers.  No answer given shall be admissible in evidence against that person in any proceedings (section 20(7) HSAW 1974).

The HSE prefer to take a statement from a witness under s.9 CJA because there are limitations on how a compelled s.20 statement can be used in legal proceedings. Broadly, a s.20 statement is not admissible for the purposes of committing the case to the Crown Court and cannot be relied upon in evidence without the witness attending court to give the evidence recorded in the s.20 statement, except in limited circumstances.  There are several ways a s.20 statement can be useful, for example they can be served on the defence and may reduce the value of that witness to the defence.

4. PACE interview under caution (Police and Criminal Evidence Act 1984)

Where a person is suspected of committing an offence a police officer has the power to arrest a person and require them to be interviewed under caution.

Note that an HSE inspector does not have the power of arrest and cannot compel someone to be interviewed under caution.

Improvement and prohibition notices

An HSE inspector may serve an improvement notice if a contravention of health and safety laws is likely to continue. An improvement notice generally requires the contravention to be remedied within a specified period. The notice can be appealed in which case the timeframe stated in the notice is suspended until the appeal is dealt with.

Alternatively, a prohibition notice may be served if the HSE inspector considers that an activity involves a risk of serious personal injury. In this instance, the notice requires the works to be suspended until the risk has been averted.

Beale & Co regularly advise and support commercial practices together with their insurers with HSE investigations and have specialist expertise in regulatory matters. We will be releasing future materials and updates on health and safety matters including the HSE’s prosecution powers and a review of enforcement action taken by the HSE.

For advice on how to respond to a health and safety incident on site, please consult our flyer here.

Please do not hesitate to contact Joanna Lewis (j.lewis@beale-law.com) or Michael Salau (m.salau@beale-law.com) for advice concerning a construction or environmental incident or for further information on HSE investigations.