HR and H&S urged to act early to secure legal privilege after serious accidents

Internal investigations after serious workplace incidents can create legal risk for employers if they are not structured properly. That’s the message from Pinsent Masons’ health and safety team.

A thorough investigation is essential to understand what went wrong and to prevent a recurrence, but a detailed internal report may also identify gaps in systems, supervision, or compliance, and in some cases, that material could be used in legal proceedings. So how can employers investigate fully while protecting their legal position, and when should they be thinking about that? We’ll ask a health and safety expert that question.

The issue arises because a well-conducted investigation is often deliberately detailed and candid. It may examine root causes, identify weaknesses in policies or procedures, and set out where things have gone wrong. That is exactly what employers should be doing, but it also creates risk. The more thorough and open the investigation, the greater the potential for that report to be used against the employer if it is not protected by legal professional privilege. If those findings are not structured appropriately from the outset, they may be disclosable to third parties such as regulators or claimant lawyers and could potentially be relied on in civil or criminal proceedings. Against that background, taking advice at an early stage can be critical, particularly in deciding how the investigation should be structured and whether legal privilege should apply.

So, let’s get a view on this. Zoe Betts is a health and safety expert and earlier she joined me by video link to discuss it. I asked her why the investigation itself can sometimes create legal risk for employers.

Zoe Betts: “This is an interesting one, because we would always advocate that our clients do thorough and comprehensive internal investigations following a serious incident because they really do need to understand what happened and what that really means, in legal terms, is the root cause analysis, the immediate underlying root causes so that, importantly, they can then put in place a list of recommendations or remedial actions to make sure that the incident can't happen again. That's really, really, important, but you can understand that that document, of course, if it's well written, and if it’s warts and all in the way that we suggest it should be, and it is looking to identify any gaps or weaknesses in the employer's systems, their policies, their procedures, their supervision, whatever it may be, that document is dynamite in the wrong hands. It's a real hostage to fortune, because you are effectively capturing in one place, in technicolour detail, things that you may have done wrong, or things that are not legally compliant and, at its worst, that document could represent an admission of liability. It could be evidence that you have identified your own legal breach and if that document then is seen by others who have a very different agenda, they are not looking to learn lessons here, they are looking to potentially bring a legal action, whether that's civil or criminal, well then that document will help them to do that. So that's why it's potentially a double-edged sword to do an internal investigation.”

Joe Glavina: “Does legal professional privilege help with managing that legal risk Zoe?”

Zoe Betts: “Well, it really does. It is the answer to the problem that I just outlined, really. I'm not suggesting that employers should be wary about doing thorough and comprehensive internal investigations – they absolutely should do that in the aftermath of health and safety incidents – but  with the benefit of legal privilege and it is a benefit, and it is a right. It’s a sacrosanct right in English law that an individual or a corporate body is entitled to investigate fully and fearlessly so that they can take legal advice and that has to be the dominant purpose of this particular document. So those are the building blocks for legal privilege. The mindset has to be, from the outset, I am going to investigate this and create a report with the dominant purpose of taking legal advice in anticipation of reasonably anticipated proceedings. No one has a crystal ball. We don't know whether there's going to be civil or criminal action as a result of this incident, but if it is of a certain severity, well then it is reasonable to anticipate that there could be litigation and what we say to clients when we're helping them to understand this issue and when we're drafting incident response protocols, where we put this into writing in a very simple flow chart format for them, we say you should really triage incidents at the RIDDOR specified injury level. So what that means is, and HR and H&S professionals will be familiar, I'm sure, with the RIDDOR regulations where you effectively have to assess the severity of what's happened and whether you are legally obliged to notify the HSE about it. Specified injuries are things like serious fractures, people receiving crush injuries, people losing consciousness. It's at that level that I believe legal privilege should be considered and should be triggered so that the document that is created is not then vulnerable to being disclosed to third parties who ask for it, such as the claimant solicitor or the HSE inspector. Just to be clear, this isn't in any way a tricky lawyer's device to get round what should otherwise be a straightforward and cooperative process. It is the company's right to do it this way. It does not in any way impinge upon the HSE powers to investigate. They have very wide powers and will very often get to the same point as the company, but what it means is the company has the ability to take legal advice, they can do so in a privileged and confidential fashion, they can still learn lessons to prevent a recurrence, but what they're not doing is making overt admissions of liability. They're still being cooperative, they can still provide a factual report to the HSE if they wish to do so, but they are not legally bound immediately upon request to provide their internal investigation, lock, stock, and barrel. If they wish to provide it, they can waive privilege, but they've got that choice, and I think it's giving employers that control which is important when one of these serious incidents has happened.”

Joe Glavina: “At what stage should employers be taking legal advice after a serious accident, Zoe?”

Zoe Betts: “I mean, I would say this, wouldn't I, but I think picking up the phone and speaking to your lawyer as early as possible once you're aware of a serious incident is the right way forward because we are used to giving advice, certainly on a weekly, if not a daily, basis and navigating these sorts of issues. We can help you to understand whether there are very clear HR issues which need to be investigated in that forum, whilst also giving you advice on health and safety issues and taking you down a privilege route if that is the way forward and we can, again, help you to navigate the overlap between the two, and the distinctions between the two. It is right to do internal investigations. It is rare, very rare in my experience, for the HSE to ask for product of the HR investigation because that's not appropriate, that has been done for a different reason. There are ways to do HR investigations under legal privilege, but very often that's not appropriate. Very often, the two investigations are running at different times and it may even be that the HR investigation has stopped for a certain reason, whereas we want the H&S investigation to carry on. So it is very important for organisations to pick up the phone, engage early, really scope out the different processes that they believe they need to go down and it can often be the case that we can advise, especially from a health and safety perspective, on what are the issues that the employer needs to investigate, and why, and that's where you might have some separation with the HR investigation. We can draft terms of reference very quickly to suggest these are the lines of inquiry that we would need you to explore so that we can then give that legal advice and that brings you full circle to this being properly privileged, because it's the dominant purpose of that health and safety report to get legal advice on potential liability. You cannot apply legal privilege retrospectively, so we need to be having these conversations at the outset, and it may even be that we have a ten- or fifteen-minute conversation and conclude that legal privilege isn't appropriate, and therefore the employer carries on. They do their H&S investigation alongside their HR investigation, they find out what they find out, they take whatever action they feel is appropriate, but that report was never privileged. If somebody asks for it, it is liable for disclosure, but it may not be particularly damaging. It may not have been appropriate for that report to have legal privilege from the outset, but what you can't do is make that decision six weeks, or six months, later because it doesn't apply retrospectively. So it's these conversations that need to be had at the outset, and then everybody knows what they're doing in a really structured, measured, and coordinated fashion.”

If you’re dealing with a serious workplace incident, as you heard, getting advice at an early stage can make a real difference, helping you structure investigations correctly and avoid the legal risks Zoe highlighted. If you’d like help with that, please do contact Zoe – her details are there on the screen for you.