The Effective Management of a Fatal Accident Investigation
Preparing for the first forty-eight hours after a fatal accident
by Tim Hill, Catherine Henney, and Elizabeth Hyde, Eversheds Sutherland (International) LLP.
Companies that have already experienced a work-related fatality will be aware of the huge number of different issues that will come to light in the aftermath of the incident. Those companies that have not experienced a fatality need to have an understanding before any such incident arises as to what those issues are likely to be.
A major health and safety incident can be an extremely challenging time for any business, and how the business responds and reacts to that incident in the first forty-eight hours can be critical to the final determination as to whether the regulator takes action, what action they take, and how the press and wider public perceive the incident.
This article provides guidance on the various steps a company should take in order to make sure that it puts itself in the best position to respond to a fatal workplace incident.
Incident Response Plan
An effective incident response plan is one that prevents an incident from ever reaching the stage of a true crisis. A company has to be prepared to deal with the web of interconnected areas of exposure that it is going to face in the event of an incident.
Make sure you have in place a good incident response plan that is properly communicated to the key people who will lead the investigation. It should contain clear roles and responsibilities, for example, who will deal with the regulator, who will deal with the media, and who will communicate updates to your employees. We often see incident response plans that have clearly taken hours to draft, but if they are not accessible and have not been tested, then they are unlikely to be effective.
The External Investigation by Regulators
Manslaughter offences (corporate or individual) are investigated by the Police and prosecuted by the Crown Prosecution Service (CPS). Dependent on what type of activity is being carried out, health and safety offences are investigated by the Health and Safety Executive (HSE) or the Local Authority (LA). Broadly speaking the HSE regulates activities in industrial or manufacturing sectors, whereas LAs regulate activities in retail and office sectors.
A protocol entitled “Work-Related Deaths: A Protocol for Liaison” is in place by agreement between the National Police Chiefs’ Council, the HSE, the British Transport Police, the Local Government Association, and various other regulators. The protocol sets out the need for a Police officer to attend the scene of the death to determine if there is sufficient evidence to justify a manslaughter investigation (corporate or individual).
Police will remain in control of the investigation (referred to as “having primacy”) until they are satisfied there is insufficient evidence for any manslaughter charges (in which case they will hand the case back to the HSE/LA to investigate), or if such evidence does exist, the matter will be referred to the CPS to prosecute for manslaughter. In the last few years, developments within the partnership between the Police and LAs have enhanced the efficiency of investigations through the sharing of information, joint interviews and site visits, and review meetings with the CPS.
Powers of Regulators
This is a complicated area in respect of which legal advice should be sought. In respect of documentary evidence, the Police and the LA both have, or can be, granted powers to have documentation handed over to them. Note that those powers will not extend to being able to obtain documents that are legally privileged. Legally privileged documents are primarily communications between a solicitor and client in contemplation of potential litigation. Legal advice should be sought before documents are handed over.
Either the Police or the Local Authority will want to interview individuals either as a witness or suspect. Where an individual is to be interviewed as a witness, they should be briefed in advance about the format of the interview and reassured that the interview is merely being undertaken to detail evidence. Consideration should be given as to whether or not a colleague should sit in on the interview if the interviewee would like this.
If an individual is treated as a suspect they will be interviewed under caution, and they will be entitled to legal representation at the interview. It is likely that they will need separate legal representation to that which the company is receiving because of the potential for a conflict of interest to arise. (See the section on conflicts below.)
If a corporate body is suspected of having committed an offence and is called to attend an interview under caution, then a representative will need to be authorised to speak on the corporate body’s behalf. No liability will attach to that individual simply by virtue of them attending the interview. Often we will look to submit a written statement on behalf of the company so that a number of key individuals can contribute to the statement and in order to control the evidence that is disclosed to the regulator.
There are many sound reasons why an internal investigation may be undertaken, though note that there is no legal requirement to do so. Best practice is that an investigation of at least some sort should be undertaken. Any investigation should not be entered into in haste and must be planned carefully. Given the potential liabilities, it may well be that an instruction is given by a company’s external lawyers to investigate, so they can then advise on potential liabilities. If done correctly, any report will then be covered by legal privilege. In other words, it does not need to be handed over to any regulator.
Careful thought should be given as to who should carry out any investigation. The investigation should not be carried out, for example, by anyone who in any way had a part to play in the incident—there needs to be totally objective evidence. The investigation should be carried out promptly and should include statements from those whose evidence will assist the investigation. All relevant documents (such as training records, risk assessments, and method statements) should be collated and appended to the report.
Conflicts of Interest
This has been touched on above. In any regulatory investigation into a work-related fatality, thought must always be given to the possibility of conflicts of interest arising. Classically, this may be a case where the company is under investigation as is the deceased’s line manager. The deceased’s line manager may attempt to infer that the company did not provide him with adequate training to carry out his task, to add to his defence. Alternatively, where a number of individuals are under suspicion, they may blame each other as to who was responsible for training or supervising the deceased. In those circumstances individuals may each need separate legal representation in addition to the company’s own representation. Thought needs to be given as to how this will be funded (such as company, insurers, unions, or legal aid).
It should also be borne in mind that conflicts of interest can arise between the company and its directors if both are investigated. Funding in that case may be provided if any liability insurance is in place for directors and officers.
Don’t Hide from the Media
You have to be prepared to face the media. Systems and procedures for dealing with the media can and should be managed proactively—the time to learn about dealing with the media is not after a fatality.
Thought should be given to having one or more persons in the company trained in speaking to the media. You need to be able to rely on informed and capable spokespeople who can talk about the matter at hand but also about any previous incidents or cases that the media may throw at them during an interview. All spokespeople should prepare, prepare, prepare! For example, set up mock interviews or panels to test out a wide range of questions that they may have to deal with.
Be aware that the media may target your employees through social media in order to be able to gain additional information. Make sure you have in place a system for ensuring that employees direct any media queries to appointed individuals.
Directors and senior personnel should be warned that they could be caught by the media at any time in the event of a major incident. We are aware of cases where directors have been faced with reporters at their front doors within days of a very serious incident occurring. Directors should be trained on how they should respond to such situations.
Should an incident occur, you may need to activate your allies (such as journalists, politicians, and trade groups). It is also important that you stay ahead of the facts and that you carefully disclose basic facts as they become available. If you hide, then the public will not trust the company and its continued messaging going forward. Craft strategic messaging and ensure that the messaging remains consistent as you will receive requests from both the media and the regulator, and you will also need to communicate messages to your employees, customers, and other stakeholders.
There is also a need to deal extremely sensitively with the family of the deceased. Expressions of sorrow over the death of a colleague are decent, humane comments, which do not amount to admissions of guilt. Putting up the shutters because of concerns over liability will usually be the wrong course of action.
Dealing with a work-related fatality is a traumatic experience for all but particularly for those who either witnessed the event or the immediate aftermath. Again this can be managed proactively by having in place arrangements whereby professional counsellors can attend on site for group and individual consultations, as well as offering follow-up telephone hotlines.
As indicated above, the way in which the first forty-eight hours following a fatality is handled can often shape, or at least influence the shape of, the future external investigation by regulators. Some key points:
- Notify health and safety solicitors and if necessary arrange for them to be in attendance on site. The value of the advice and support on site of an experienced health and safety solicitor in the immediate aftermath can be considerable.
- Ensure that a lawyer invokes legal privilege over the investigation so that a regulator cannot seek disclosure of any documents generated following the incident unless you choose to waive privilege. It is essential that this is put in place quickly so that legal privilege is not lost.
- Notify insurers. This will probably be a requirement under a company’s public or employers liability policy, but insurers may also provide indemnity in respect of costs. You are not legally required to instruct the lawyers appointed by the insurance company; you are free to select the lawyers of your choice.
- Establish an internal investigation team.
- Ensure employees are reminded of the need to avoid speculation, particularly in written form (including emails and posts on social media) whilst the internal investigation team is carrying out its investigation.
- Provide support as is necessary and appropriate to the deceased’s family.
- Arrange for counselling and other support for those employees who either witnessed the accident or the aftermath of the accident.
- Establish a key, single point of contact to act as liaison with the regulators to deal with all requests (such as to interview individuals or obtain documents).
- Utilise the services of PR consultants (either an internal department or an external consultant). All press enquiries should be directed to a single point of contact, and all employees must be briefed not to speak to the press.
- Report the death pursuant to the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations if applicable. (This may not always be the case, such as where the death involves contractors in certain situations, or for certain road traffic deaths.)
Consideration needs to be given to the role of the coroner’s inquests in respect of work-related fatalities. All work-related deaths will be subject to an inquest before a jury. The purpose of an inquest is to establish certain details and for a verdict to be reached. It is not a forum to apportion guilt. The inquest needs to determine:
- Who the deceased was.
- Where the deceased came by his death.
- When the deceased came by his death.
- How the deceased came by his death.
It is likely that employees will be called to give evidence at any inquest, and appropriate support should be given as well as legal representation arranged for the company.
If manslaughter charges are brought, the inquest will not normally be held until after the determination of these charges. If no manslaughter charges are brought, then the inquest will usually take place before any health and safety charges.
Companies understandably need certainty, and it is important that those leading the investigation manage the expectations of the leaders of the business. The timescale from the date of the incident to any criminal proceedings should be measured not in weeks or months, but in years. The period between incident and court has been the focus of debate in the House of Commons. Recent evidence submitted to the House of Commons confirmed that a typical investigation and prosecution following a fatality will take between nearly three and four years to conclude.
The same is true for any individuals who find themselves subject to an investigation by the Police or enforcing authorities into their personal conduct. Following the introduction of the Policing and Crime Act in April last year, and the introduction of time limits for bail, the Police have attempted to circumvent the new requirements by releasing suspects “under investigation” rather than on bail. The absence of bail return dates potentially allows investigations to hang in abeyance without any recourse.
Time delays can present a number of problems to a company. For example, will relevant employees still be employed when the prosecution comes round? Will all documents still be to hand? Could there be a change of ownership in the business? And how would the incident be dealt with as part of due diligence? A lot of these issues can be covered by a comprehensive internal investigation immediately after the incident. With a well-prepared incident response plan, you will put yourself in the best position to ensure that those three to four years are as smooth as possible.
The key to responding to an incident is your preparation in advance of anything happening. As morbid as it may seem, businesses can and should prepare for the possibility of a work-related fatality. That preparation can include:
- Putting in place an effective incident response plan and periodically testing it.
- Providing media training for key individuals.
- Providing incident investigation training for those individuals likely to be involved in such an investigation.
- Putting in place counselling provisions for affected persons.
- Having 24/7 contact details for your solicitors.
TIM HILL is a partner, CATHERINE HENNEY is a principal associate, and ELIZABETH HYDE is a principal associate and solicitor-advocate at Eversheds Sutherland (International) LLP. The company specialises in environmental, health and safety, and food safety criminal defence work and acts on behalf of both companies and individuals. Its health and safety team has consistently been ranked as the UK’s leading health and safety practice in the UK’s legal directories (Legal 500 and Chambers and Partners). It also advises on non-contentious, complex regulatory requirements, including chemical compliance, producer responsibility, sustainability, contaminated land, Brexit, CE marking, trading standards, product safety, product labelling, and licensing. The authors can be reached at firstname.lastname@example.org, email@example.com, and firstname.lastname@example.org, respectively.