Workplace incidents – are you prepared?
Every business has to comply with regulations. These range from health and safety rules to environmental requirements. The purpose of regulations is to reduce the risk of workplace incidents but, no matter how good your procedures are, accidents can and do happen.
When there is an incident the enforcement authority, such as the Health and Safety Executive, will need to undertake an investigation and, as part of this, may want to interview the directors and senior managers of the company.
How the company handles these requests can have a major impact on the approach taken by the enforcement authority and whether, ultimately, a prosecution is pursued. It is therefore important for businesses to have an action plan for responding to interview requests.
In this article, we consider some of the key issues.
The first thing that a company should do on receiving a request to attend an interview is to obtain legal advice. There are a number of factors that a company should consider before deciding whether to agree to attend the interview and it is quite reasonable to notify the enforcement authority that, having received the request for an interview, they are taking legal advice before responding.
In what capacity are you attending?
When considering the request itself, the first point to ascertain is whether the director or senior manager attending an interview is being asked to do so in his or her personal capacity or as a representative of the company.
If attendance is being requested in the person’s personal capacity, it is not normally sensible for the company solicitor to represent them as their personal interests might differ from those of the company, creating a conflict.
In order to properly consider a request to attend an interview, the adviser will want, in so far as is possible, to obtain advance disclosure of the nature of the allegations being made and the evidence that has so far been obtained.
If the interview is at a very early stage and there is no real disclosure to be made, it is often helpful to request details of the questions that it is intended to put. This not only helps gain an understanding of the enforcement authority’s thinking, but also gives the company the chance to ensure that the right person or persons from the business attend.
Alternatives to attending
No offence is committed by declining an interview, although inferences can be drawn in certain circumstances. As an alternative, the company may provide a written response. Often health and safety or environmental incidents can involve complicated technical issues and these can be difficult to address in an interview setting – the person attending may find it difficult to provide clear explanations or may end up providing details that will harm the company’s position.
A written response allows the company to explain its actions clearly and concisely without inadvertently incriminating itself. At the same time, providing a written response will be viewed as an attempt to assist the enforcement authority with its investigations.
Sometimes this approach can be followed by an interview based on the written answers.
Whilst it is correct that, as a general rule, companies should adopt a helpful and cooperative stance in their dealings with an enforcement authority, they should nonetheless do so in a manner that protects their interests.
The aim is to reduce the prospect of enforcement action being taken whilst still being able to say to the Court that they have cooperated in the event that a prosecution follows.
Being properly prepared for an enforcement authority interview is only part of a full emergency plan for dealing with incidents at work. Other matters which will need to be considered include notifying insurers, investigating the incident internally and dealing with any press interest. Having an emergency incident plan in place will help ensure that the company protects its position should an incident occur.