HSE cases in UK highlight overlapping risks in HR and H&S investigations

Serious workplace incidents are often not just safety failures, they are failures in training, supervision and individual conduct, which can trigger more than one investigation inside the organisation. That means employers may need to look not just at what went wrong, but how people were managed, often through both a health and safety investigation and an HR investigation running in parallel. So how should employers manage that overlap, and what can go wrong if those investigations go off in different directions? We’ll ask a health and safety expert.

The HSE has been highlighting how quickly those issues can arise in practice. In one case, a young worker was run over by a forklift truck being driven by an untrained colleague, with clear failures in supervision and risk assessment. In another, an agency worker suffered serious chemical burns where the HSE found shortcomings in training, communication and the use of PPE. And in a separate case involving a police force, officers were exposed to significant risks due to failures in planning, training and risk assessment. The common thread is that these are not just safety failures. They raise questions about training, supervision, behaviour and compliance, all of which sit squarely within HR’s remit and can lead to a parallel HR process alongside the health and safety investigation.

So let’s get a view on that. Zoe Betts is a health and safety lawyer and earlier she joined me by video link. I asked Zoe if it’s common for employers to run parallel investigations after a serious accident: 

Zoe Betts: “Yes, that can happen quite often. It is almost inevitable that certain incidents of certain severity will give rise to both safety issues and health and safety issues and very often the investigations into those different issues do give rise to different investigations because they've got different purposes. So generally, a health and safety investigation needs to start pretty quickly, because what you're looking to identify are the immediate, the underlying, and the root causes so that, most importantly, the employer can take action to prevent a recurrence. An HR investigation is no less important, but that's looking at more of the individual's conduct and their compliance with corporate policies, procedures and training. So there can be circumstances where an investigation can be joint. An investigation of that might be wearability of PPE, especially if somebody's got disabilities. There, I would suggest, that should be an HR led investigation with input from health and safety because they understand issues surrounding PPE and the legal requirements, but where you've had a serious workplace incident, and especially if the regulator is involved, the Health and Safety Executive or, at worst, the police, I would always suggest that the health and safety investigation needs to take the lead, and it needs to start very quickly. You need to get that underway so that you can understand what's happened, prevent a recurrence, but most importantly you might be thinking about doing that under legal privilege and that's not something which is necessarily first and foremost with an HR investigation. So what I'm saying is it's often inevitable that there will be parallel investigations and that has to be managed quite carefully.”

Joe Glavina: “If investigations run separately but they’re not properly coordinated, presumably the company could run into various legal risks?”

Zoe Betts: “Well, indeed, there are legal risks without that proper coordination, you're absolutely right. Separate investigations, in and of themselves, are often necessary, and they are the way forward, but I would always suggest it's key for the health and safety and the HR professionals to sit down together at the outset, discuss what they're trying to achieve, discuss their different aims and different scope of their investigation to see the areas where they can collaborate, where they can cooperate, where they can work together, so that they can avoid the following pitfalls because I believe parallel and separate investigations that are completely uncoordinated can often create a lot of duplication of effort, which is time consuming and it's costly, and it can also mean that you are potentially going back to the same witnesses time and time again asking very similar questions which can cause them frustration, upset, and in certain circumstances that can be quite traumatic, depending upon what they've been through or what they've witnessed. It may also mean there are problems from a logistical and a very practical perspective with evidence gathering. You can imagine, in certain circumstances, there are original documents, whether they're hand written documents, signed documents, or CCTV, which only exists in one place and if one of those professionals, either the HR or the health and safety professional, has gone and captured that evidence solely for their reasons, with the best of intentions, but looking at this through the lens of only their own investigation, well then that very same evidence which is relevant to the other professionals investigation is no longer available to them, they don't know where it is, they don't know where to find where to find it and, at worst, it could potentially have been changed before they've been able to view it in its original form. So that lack of coordination can cause problems in that evidence gathering process. It could also mean actual damage to the employer's legal position. If the health and safety investigation is being done under legal privilege, which is very often our advice in the aftermath of a serious incident, if there is a lack of understanding about how legal privilege works, and those documents are shared wholesale in the view that that somehow is evidence of cooperation with the HR investigation, that's possibly a step too far that can lead to a full waiver of privilege, and that then weakens the employer's legal position because those documents are available for disclosure to claimant solicitors, or to the HSE. So what we're suggesting is better collaboration from the outset, better understanding of each of the individual's roles, so that they don't fall into any of those potential pitfalls.”

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