Tom McNeill is a partner and health and safety regulatory specialist at BCL Solicitors
Construction incidents that result in fatalities, serious injuries, or dangerous occurrences often trigger criminal regulatory investigations. Such investigations may lead to prosecutions against organizations, directors, officers or other individuals. While organizations value their security responsibilities and strive to cooperate with enforcement authorities, they also aim to protect themselves from prosecution and other regulatory risks. These goals can be pursued simultaneously.
“Even in cases where prosecution is likely, a proactive approach can mitigate the outcomes“
How cooperation is provided can significantly affect the bottom line. For example, construction projects often involve a number of contractors with overlapping responsibilities. Help the implementing authority understand the precise nature of these relationships and responsibilities, both contractually and in practice, while recognizing the legal duties imposed on clients, designers, contractors and workers by the Construction (Design and Management) Regulations ) from 2015, is often key to ensuring a favorable outcome.
Similarly, implementing “enhancements” without considering the responsibilities of the various parties, or otherwise fully understanding the secure system of work or seeking the involvement of experts when necessary, can introduce new security risks and application Instead, adequate and effective remediation can be a powerful tool in persuading an enforcement authority not to deal, avoiding enforcement actions that would otherwise cause unnecessary project delays.
To form an effective response, a proper understanding of the facts, legal duties and the likely approach of the enforcement authority is essential. Organizations operating in the construction industry should seek legal advice following a serious incident and consider the following factors:
Reports to the competent authorities
Serious incidents on construction sites should normally be reported to the appropriate authority, usually the Health and Safety Executive (HSE). Failure to report as required by the Reporting of Injuries, Illnesses and Dangerous Incidents Regulations 2013 is a criminal offence.
Execution of the investigation of the authority
Enforcement authorities determine whether to investigate potential violations based on their enforcement policies, taking into account factors such as the scale of harm, the seriousness of violations, enforcement priorities, available resources , the practicality of achieving results and public concern.
Competences of researchers
Health and safety inspectors have broad powers to enter premises (but not carry out a search), examine, investigate, demand answers and access books or documents. The police, involved in cases of corporate or individual involuntary manslaughter, have powers of arrest and search (a person cannot be arrested on suspicion of involuntary manslaughter).
Enforcement notices
Inspectors can issue improvement notices or prohibition notices to correct health and safety breaches on worksites. Failure to comply with these notices is a criminal offence. In some circumstances, an enforcement authority may agree to amend or withdraw a notice. Notifications can be appealed to the Labor Court.
Internal investigation
The organizations involved are likely to have a duty to carry out their own investigations, including compliance with the Management of Health and Safety at Work Regulations 1999. The findings of internal investigations may be disclosed to the authorities enforcement unless protected by legal professional privilege. Incorrect internal investigation findings can significantly increase the risk of enforcement action.
Criminal offences
Failure to comply with the general safety duties of the Occupational Safety and Health Act, etc. of 1974 is a criminal offence, as well as breach of health and safety regulations. Regulations commonly affecting the construction industry include the Construction (Design and Management) Regulations 2015, the Work at Height Regulations 2005, the Manual Handling Operations Regulations 1992, the Control of Hazardous Substances Regulations for Health 2002 and Electricity at Work Rules 1989. Senior officials can be personally arrested. liable for organizational violations through “consent, connivance, negligence” provisions.
Approach of enforcement authorities
Enforcement authorities often attribute construction accidents to management, organizational or planning failures rather than individual errors. Police investigations focus on grossly negligent homicide by an individual and the role of senior management in contributing to organizational failure in corporate manslaughter cases.
Timing
Defending an organization should start from the beginning: once an investigation has gained momentum, it is much more difficult to reverse course. Effectively representing the organization’s position when responding to requests for information or an enforcement notice provides the best opportunity to avoid prosecution.
public interest
Prosecution decisions take into account not only breaches of legislation, but also whether prosecution is in the public interest. The HSE considers a number of factors including the seriousness of the offence, the harm caused, compliance history, continued risk and co-operation.
Proactive approach
Proactive involvement, especially for less serious incidents, can help avoid prosecution. Even in cases where prosecution is likely, a proactive approach can mitigate outcomes and minimize harm, while protecting directors and officers from individual prosecution.
