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Pinsent Masons Health & Safety Critical Incident Tool

The recommendations, information and materials contained in this website are for general information purposes only and do not constitute legal or other professional advice, and should not be relied on or treated as a substitute for specific advice.

  • 1. There has been an incident

    Immediate first steps

    • Administer first aid (if safe to do so)
    • Ensure any injured individuals are being cared for and emergency services called as necessary
    • Ensure the premises and any equipment are safe

    Next steps

    • Contact your in house legal team
    • Consider contacting your external lawyers - if you have no such existing arrangement, then please contact a Pinsent Masons Health and Safety specialist
    • Consider if the incident is RIDDOR reportable
    • Consider if your insurers should be notified
    • Responding and interacting with the regulator/police
    • Carry out an internal investigation

  • 2. The Reporting of Injuries, Diseases and Dangerous Occurrences in the UK

    The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (“RIDDOR”) and the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (Northern Ireland) 1997 (“RIDDOR NI”) place duties on employers, the self-employed and people who are in control of work premises in the UK (including certain offshore facilities) to report specified serious workplace accidents/injuries involving employees or non-employees, occupational diseases and 'dangerous occurrences' (near misses) to relevant enforcing authorities (including the Health and Safety Executive, the Health and Safety Executive Northern Ireland (together “HSE”) and Office for Road and Rail).

    There are fairly short time limits for making a RIDDOR report and the wording of the report may impact on whether an investigation is carried out by the appropriate regulator. You should therefore think carefully about the wording of any report before it is sent to the regulator and consider seeking legal advice before doing so.

    Failure to report a case which meets the legal threshold may constitute a criminal offence which carries the potential for an unlimited fine.

    A similar regime applies in Northern Ireland.

    For more on the RIDDOR regime, see our RIDDOR guide.

    If you require further legal advice on how to avoid a health and safety incident or on what to do should one occur, then please contact a Pinsent Masons Health and Safety specialist.  If you need immediate assistance, then please call us now.

  • 3. Internal investigations

    Where an incident happens, you will undoubtedly want to investigate to establish the cause of the incident, so that lessons can be learned and enhancements made. In some instances, investigation will be needed so that legal advice can be taken on potential legal consequences, and in contemplation of civil and/or criminal legal proceedings.

    The scope and "dominant" purpose of any investigation must be clearly understood from the outset.

    Your internal and external legal teams should be involved in both the decision to carry out an investigation and the investigation itself.

    When carrying out an internal investigation, remember:

    • That any documents created after an incident, including emails, might become disclosable to third parties, such as the HSE or in civil proceedings at a later date, unless those documents are properly covered by legal privilege.
    • Simply writing on documents or emails ‘legally privileged’ does not protect the document. Nor does simply copying in a lawyer.

    You might want to develop an incident response protocol so the relevant people in your business know how to react in the event of an incident. We can advise you on this and on how to carry out your investigation effectively and to protect the business at the same time.

    For more information on investigations see our Advice for employers.

    If you require further legal advice on how to avoid a health and safety incident or on what to do should one occur, then please contact a Pinsent Masons Health and Safety specialist.  If you need immediate assistance, then please call us now.

  • 4. What powers do the officials have?

    A number of regulators are responsible for investigating health and safety incidents. They include:

    • the Police (in the most serious cases such as a fatality);
    • the Health and Safety Executive (HSE);
    • local authorities;
    • fire authorities and
    • the Office of Rail and Road (ORR), amongst others. 

    The police have wide ranging powers, including the power of arrest and to interview suspects under caution.

    If the HSE believe there is a breach of health and safety legislation they have a variety of legal powers available to them including to:

    • Actively investigate
    • Take copies of relevant documentation
    • Compel witnesses to give statements
    • Invite individuals or companies for voluntary interviews under caution (they do not have the power of arrest)

    Remember:

    • In very serious incidents where fatalities result, the police may lead the investigation
    • If you can, it’s best to seek legal advice before the HSE or other regulator, such as the police attend. To help protect the company and individuals we can:
      • Brief you and your employees on HSE (and police) interviews
      • Advise on providing documents to the HSE (and police)
    • If the company or individuals are invited to give an interview under caution (in person or in writing), you are strongly advised to seek legal advice as soon as possible.
    • The police / HSE will consider enforcement action
    • Where an inspector is of the opinion there is a material breach of regulations a Fee for Intervention may be charged

    For more information see our Advice for employers and our Enforcement guide.

    If you require further legal advice on how to avoid a health and safety incident or on what to do should one occur, then please contact a Pinsent Masons Health and Safety specialist.  If you need immediate assistance, then please call us now.  

  • 5. What if some documents are privileged?

    Officials are not entitled to read, take copies of or otherwise require disclosure of documents and incident reports that are subject to legal professional privilege.

    What to do if documents might be privileged?

    • Do not hand over documents that are marked as legally privileged or which you think might be privileged.
    • It is important to remember that not all documents which are legally privileged will necessarily be marked as such – protection will depend on the circumstances and content of the information.
    • If in doubt about whether the document is legally privileged seek legal advice.

    For more information on privilege see our Guide to legal professional privilege.

    If you require further legal advice on how to avoid a health and safety incident or on what to do should one occur, then please contact a Pinsent Masons Health and Safety specialist.  If you need immediate assistance, then please call us now. 

  • 6. What questions can the officials ask?

    The HSE may require any person to provide information relevant to an investigation or examination or require answers to be given to such questions that the inspector thinks fit to ask.

    Where this power is used, the evidence obtained cannot then be used against the witness, or their spouse or civil partner personally but it can be used as evidence against an employer or other duty holder.

    The HSE also has the power to carry out an interview under caution but only voluntarily. The HSE has no power of arrest. Information obtained using this method can be used as evidence in a prosecution.

    If you (the company or an individual in their personal capacity) are invited to a voluntary interview, representations can often be made in writing rather than via a face to face interview. Specialist legal advice should be sought.

    For more information see our Advice for employers.

    If you require further legal advice on how to avoid a health and safety incident or on what to do should one occur, then please contact a Pinsent Masons Health and Safety specialist.  If you need immediate assistance, then please call us now. 

  • 7. Do you have to cooperate?

    It is important for the company and its staff to cooperate at all times with the investigation.

    The way you interact with investigating bodies can impact on the future outcome and likelihood of enforcement action being taken. If the officials are obstructed when they are trying to exercise their legal powers, it may be a criminal offence for individuals and also lead to the company and/or individuals being fined. Seek legal advice where you are unsure how best to assist and cooperate with a regulator.

    We can also provide training and guidance on incident response and incident investigations and what to do when an inspector calls in advance of an event occurring.

    If you require further legal advice on how to avoid a health and safety incident or on what to do should one occur, then please contact a Pinsent Masons Health and Safety specialist.  If you need immediate assistance, then please call us now. 

  • 8. Contact the Health and Safety Incident Response Team