What to do when HSE calls?

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Opinion by Jennifer Matthew

As an employer, it’s your responsibility to make your workplace safe for your employees.

Neglecting this can result in serious injuries or fatalities, significant legal costs and major fines.

Sometimes there’s also the possibility of a jail sentence.

Regulatory crime spans across many areas, such as anti-bribery laws and serious fraud, like the Libor fixing scandal.

However, the most common is breaches of health and safety legislation, primarily governed by the Health and Safety at Work Act 1974 (the Act).

The HSE’s role is to investigate the breach, issue contravention notices and report to the Crown, who decides whether to prosecute.

A company or a person with authority may be charged.

So how do you protect your company’s interests when the HSE inspector calls?

Having no lawyer present could be troublesome, so it’s important to consider you legal representation when an investigation is expected.

What are an Inspector’s powers?

The inspector is granted four main powers under s.20 of the Act:
• Interview of employees;
• Interview of employer;
• Recovery of documents; and
• Retain control of premises, plant and equipment.

The inspector may not always appreciate the restrictions on his powers, so you may wish to have a lawyer present. You might try to be accommodating, but the interests of the company ought to be protected against unreasonable or unlawful demands.

The Interview

When the HSE begins its interviews, it will focus mainly on the employer, being the company or duty holder.

As part of that process, the HSE will probably interview employees.

Employees can be personally liable under s.37 of the Act, therefore it is important to listen to the questions the HSE investigator is asking.

During the interviews, listen to the questions the HSE investigator is asking – does it seem like the investigator is looking at the actions of the employee? If so, arrange separate representation to avoid conflicts of interest and to protect your employee.

Are the interviews voluntary or compulsory?

The form of interview may be providing a voluntary statement or a s.20 compulsory statement, although there isn’t always a choice.

A solicitor may be present during both, and a voluntary statement may be declined. If declined, a compulsory statement will almost certainly follow.

Again, your lawyer will be listening to the questions being asked – is it outside the persons knowledge? Is the answer technical, requiring access to a document?

If so, your lawyer may stop the interview to obtain documents. Is the HSE beginning to treat the employee as a suspect? Are they incriminating themselves?

If so, the interview will be stopped to arrange separate representation.

During compulsory interviews, it is an offence to be untruthful or decline to answer.

It is also an offence for the solicitor to direct that a question isn’t answered.

Clarification may be sought, or, for example, clarifying where the employee has no direct knowledge of an issue.

They cannot tell the employee not to answer.

Interview under caution

Normally an employer will be invited to an interview under caution at the conclusion of an investigation.

It is not a requirement and no adverse inference can be drawn from declining.

If declined, they will be invited to make representations. This should also be declined.

The representations are of no benefit at this stage and instead, any substantial defence or mitigation should be carefully crafted and submitted to the Crown. The Crown expects this.

Documentation

No duty holder can be compelled to produce documents to which legal privilege attaches.

Consulting at an early stage increases the prospects of documents being protected by legal privileged.

In summary, not every breach must result in a report to the Crown; not every report to the Crown results in prosecution.

Jennifer Matthew is a senior solicitor in Aberdein Considine’s national dispute resolution and commercial litigation team, which works with businesses of all sizes across the Oil & Gas Industry.

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