How an organisation responds in the immediate aftermath of a serious health and safety incident can have a significant bearing on both the commercial and legal outcomes of the incident. Such incidents, particularly those involving a fatality, can be extremely challenging for any organisation and its employees. Prior awareness of relevant considerations and planning how to respond to such an incident is critical.
The first 48 hours: checklist
- Solicitors should be notified and if necessary arranged 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.
- Notification of insurers. This will probably be a requirement under an organisation’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/posts on social media) whilst the internal investigation team is carrying out its investigation.
- Support should be provided as is necessary and appropriate to the injured or deceased’s family.
- Counselling and other support should be arranged for those employees who either witnessed the accident or the aftermath of the accident
- A key single point of contact should be established to act as liaison with the regulators to deal with all requests (such as to interview individuals or obtain documents).
- The services of PR consultants should be utilised (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.
- It is likely that an organisation will be obliged to notify the incident pursuant to RIDDOR (this may not always be the case, such as certain road traffic deaths). You need to check.
Written by Kevin Elliott, Partner, Eversheds Sutherland (International) LLP for The SHE Show North East, 5th March 2019, Newcastle United Football Club.
For more detailed information in respect of managing a serious health and safety incident, please get in touch with health and safety lawyer Kevin Elliott, Partner and International Head of the Eversheds Sutherland Environment, Health and Safety team. The Eversheds Sutherland EHS team is ranked in Band 1 in the UK’s legal directories.
Eversheds Sutherland (International) LLP
Please note, the views expressed by the original article author are theirs alone and do not necessarily represent those of Washingtondowling Associates Ltd or The SHE Show and therefore we take no responsibility for the content or accuracy of this post.