No matter how well prepared you are, how good your risk assessments, method statements and training, no matter how good your health and safety management system, there is still a chance that the worst can happen.
You're in your office and suddenly you get a distressed call from one of your site workers. There has been a fatal accident on site. What you do next is vitally important.
Your site is now a crime scene while authorities gather evidence. The impact on you, your workforce, and your business is immediate. You need to act in the best interests of the company, while protecting their legal position and displaying an appropriate attitude and co-operation towards the bereaved, your employees, the authorities, and the media.
Most companies never plan for such an event, but it is recommended that you do. We hope that you never have to implement this action plan, but in case you do, here is a brief summary of what you need to consider.
GATHER ESSENTIAL INFORMATION
Get whatever information you can from the site and take detailed notes:
What happened and when? Keep an open mind but write everything down.
Who is involved? Get names and contact details. Take witness statements.
Has the victim(s) been taken to hospital? If so which hospital? Is the victim an employee? If not find out who they work for and contact them.
Has anyone contacted the authorities? If so who, when and what has been said?
Have third parties arrived on site? Is it police or HSE / EHO? Get their details to pass on to your solicitor.
Has work stopped and the scene been preserved?
CONTACT THE VICTIM'S FAMILY
The police and the immediate employer will usually be those liaising most closely with the family.
Appoint someone responsible to keep the family up to date immediately and as matters progress.
How you treat the bereaved at this time will have a lasting impact. Be compassionate, sympathetic, and share with them the facts known at that stage. Offering financial help towards the funeral or other expenses is not necessarily an admission of guilt.
SUPPORTING YOUR EMPLOYEES
Employers involved or affected should be offered immediate support and advice. This could be counselling, legal advice or line management support.
Talk to them frequently about the incident. Be accessible to them.
Hold a memorial service, allow time off work, hold a collection for the family are all ways of helping employees through this time.
CONTROLLING THE FLOW OF INFORMATION OUT OF THE COMPANY
Ensure that clear lines of communication are established with only one senior individual having authority to speak on behalf of the company, and to agree to the voluntary release of documentation. Ensure everyone knows this. This person, or a specific media trained person should deal with the press. Prepare well for any interviews with the media.
REPORTING THE DEATH
As the immediate employer, or company in control of the premises, you have a legal duty to report the death. Failure to do so is a criminal offence. The current (at the time of writing) phone number to call is 0345 300 9923. Check the HSE website for updates on this. Keep a record of what you tell them.
SEEK SPECIALIST LEGAL ADVICE
Like it or not, your company, and potentially its directors and employees are now subject to a criminal investigation. Speak to your insurers. They may provide you with a solicitor. Otherwise, ensure your chosen solicitor provides a 24 hour, 7 day service as you may need urgent advice or assistance out of office hours. Your insurers should provide cover for legal costs. They are not, by law, allowed to pay any fine a criminal court imposes.
YOUR INTERNAL INVESTIGATION
Whoever you use to investigate the accident internally needs to be at the scene as soon as possible so that they can start investigating what led to the incident and to begin identifying what needs to be put right.
If the deceased is a subcontractor's employee, try and obtain access to their records. Some companies put this in the contract terms and conditions.
If witnesses are in a fit state to be interviewed, record their account of events. If not arrange to speak to them after medical attention has been given.
If equipment or objects have been moved to get to the victim, take photos of the scene and note what each image shows. Check and copy CCTV footage. Preserve the scene, material and paperwork. Inform directors and insurers. If authorities request a copy of the internal investigator's report, seek legal advice before providing a copy.
ARRIVAL OF THE POLICE AND HSE
Remember that nothing is "off the record" to the authorities. Both the police and the HSE will arrive on scene. HSE may pass this to the local authority depending on the type of business involved. They all have the legal right to enter the scene.
The police will treat the scene as a crime scene so work activity in the area must stop. Equipment and documents may be removed from site. If you can, provide them with office space for their work.
EVIDENCE GATHERING - SITE DOCUMENTATION
Documentation and computer records, such as method statements, risk assessments, training records, permits to work may all be seized or copied. Keep a copy of everything taken from site. Ask sub contractors for copies of their records. Seek legal advice!
EVIDENCE GATHERING - WITNESS INTERVIEWS
Authorities will interview eye witnesses first, then those involved in the lead up to the accident. Make sure they are fit to be interviewed - they may be in shock. Try and ensure (not always possible) that they are interviewed by the internal investigator first.
The HSE have legal powers to force employees to answer questions. Employees are entitled to legal advice from a solicitor before the interview. Employees should be given a copy of their statement. If they voluntarily give a copy to you you may identify issues of concern. There may be a need for further interviews later in the investigation.
A HSE inspector can, if he has reason to believe an activity may put others at risk, legally enforce you to halt activities via a prohibition notice. Alternatively, an improvement notice may be served requesting remedies to prevent contraventions being made. Both can lead to prosecution if not followed. This can include a prison sentence.
An Inquest will be held due to the death being sudden. Interested parties such as the victim's family, employer, premises owners can participate. The Coroner does not apportion blame. They are interested in the identity of the deceased, when they died, where they died and how they died. Your lawyer can advise you further.
INTERVIEW UNDER CAUTION
Once evidence has been gathered, the authorities will offer those suspected of an offence to attend an interview under caution. Seek legal advice immediately. Remember if individuals are suspected of offences such as manslaughter or health and safety breaches they may be arrested. Being arrested is unpleasant and stressful. The employee will need immediate expert advice, ideally from someone who knows the case.
PROSECUTION DECISION MAKING PROCESS
Prosecution is decided based on the weight of evidence gathered, and its reliability, and whether a criminal prosecution is in the public interest. If proceedings start, await details of the evidence the Prosecution will put forward then seek advice on liability from your lawyers.
FEES FOR INTERVENTION
If you are found to be in material breach of health and safety law, you will have to pay for the time it takes the HSE to identify the breach and help you put things right. This includes investigating and taking enforcement action and is called fee for intervention (FFI). This must be paid within 30 days of invoice. At the time of writing, the FFI is £129 per hour.