Many have praised the measures that the Chancellor put in place to support the economy financially. While these measures were substantial, even the Chancellor indicated that this might not be enough and stated that the Government would 'identify other specific opportunities to support them [businesses] and their industries, including possible regulatory forbearance'.
A week on from that announcement, what regulatory forbearance actually means is unclear, but we are starting to see regulators make statements to reassure businesses. The CMA has indicated that it will not enforce against businesses working together to address this crisis, the Advertising Standards Authority has adopted a more relaxed stance, there have been relaxations on timings for listed companies to file results, amongst many other temporary adjustments.
But what about safety? As many people in medical, manufacturing and retail (amongst other sectors) are working round the clock to care for, feed and support the nation, it is an unavoidable reality that workplace accidents will continue despite best efforts to the contrary. But in these times will they be investigated and, if so, how?
What will be investigated and how?
At present the requirement to RIDDOR report remains in place, and we do not expect this to change. The way in which you report has always had great significance. While a very serious injury or death would result in a regulatory investigation, the majority of accidents are less serious. If a less serious incident is reported poorly it can give rise to a much greater chance of an investigation than one reported using the same factual basis but slightly different language: we have all seen those reports where they raise more questions than answers, or worse, inaccurately imply fault…
It has always been a good discipline to carefully review RIDDOR reports before submitting as they are the first thing a regulator sees, but in times where regulators are less likely to be able to visit you, these written reports take on even greater significance. It goes without saying that a self-contained report that gives a clear conclusion and explanation of what has happened is far less likely to be substantively investigated.
To be clear, we fully expect regulators will continue to respond to and investigate serious workplace incidents. They are, however, required to prioritise incidents so as to determine whether a physical response is required, and balance the need to regulate with their own safety and the safety of others that might be risked by attendance. Quite properly, where the duty to investigate incidents can be discharged by other means there should be a greater willingness to explore these options.
Remote Investigations – how will they work?
While the COVID-19 restrictions continue, we are likely to see an increase in matters being investigated remotely, particularly those accidents that are in the strata below the most serious.
Inspectors authorised to investigate workplace accidents - commonly from the HSE or Local Authority EHOs – are equipped with a broad range of powers (see Guidance issued by the HSE). These include the power to require any person to give any information relevant to any investigation by answering questions, and the power to require the production of, inspection of and taking copies of documents.
Official Guidance states that in normal circumstances, Inspectors will seek to obtain the information by interviewing a person and taking a witness statement. However, if this is not possible or appropriate, they are entitled to seek and, if necessary, require information in writing. This request may be made over the telephone, on email or in a letter. Importantly, it can be made remotely without ever attending site, subject to some restrictions.
This power of request is backed up by the threat of a prosecution for obstruction amongst other offences in the event of non-compliance.
We are not in normal circumstances. Businesses can therefore expect an increasing number of written requests for information, backed up with a criminal sanction in the event of non-compliance. Our strong advice is that you consider each request carefully in light of their statutory basis before complying. It may be that you are legally bound to comply, but equally we see frequent examples where the powers are suggested to give rise to obligations that they simply do not.
As is always the case, you may choose to provide certain information voluntarily and this is something that should always be considered tactically in the circumstances, particularly given that at present this may be all a regulator has to consider in order to determine whether to investigate further or not. It may pay dividends to voluntarily disclose a well-drafted accident investigation that closes the issue down and allows the regulator to close their file. Obviously, if it does not close the issue down and box it off then think again!
Accident investigation reports – even more important than ever?
In our experience, one of the first things that a savvy investigator asks for is the accident investigation report; it helps the regulator to fast track through the system and often does much of the initial work for them. These reports, when not covered by legal privilege, often also provide a warts and all insight and show potential breaches, or failures to follow the business' own system. When not produced carefully they can often be used against a well-meaning business: diligent businesses can find themselves being their own worst enemy.
While regulators keep operating, we expect requests for these reports to increase significantly and potentially be the subject of a section 20 request, so consider if they are legally privileged and consider the format and content to ensure that they deliver the maximum impact.
What does that mean for you? We are not advocating that you do not do an investigation, far from it. But it is the case that you need to consider how that investigation is undertaken and how it is presented. For instance, you may want a more full liability investigation to take place behind the shield of legal privilege to allow you to get the advice you need.
When drafting disclosable reports, always think like a regulator. If, as is so often the case, an employee has acted contrary to their training, it is vital that the report shows what the policy and procedures were, that the employee was trained on those specific elements and was refreshed on them, and – despite that – managed to do what they did. All of which (ideally dated and referenced to it) is clear that there is a system in place and that despite doing all that was practicable the employee has done something unforeseen. That may not be enough to establish a defence, but it is far better than leaving questions in the reader's mind as to what the system was and if and when that employee was ever trained on it.
As always, you should only include the relevant and probative. Our experience, however, is that the extent of failings identified in Internal Investigation Reports can be inversely proportional to the standards of health and safety management; the more diligent employers often being more critical of their own performance.
These points may sound obvious, but in times where a regulator is unable to visit site, a well-crafted accident report reaching a regulator will give it both confidence in your operation but will also hopefully result in the conclusion that it is not the place to be investing the limited resource and time available.
Brave new world
While we expect that the number of investigations will decrease for obvious reasons, there are steps that a business can take to help protect itself. While these are driven by current circumstances, they will allow all to be better prepared for the future, whatever it brings.