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Work
Instruction 3:
Conduct and Liaison
This
Work Instruction states that "All contacts made
during an investigation should be conducted in accordance
with the HSE Board Statement on Openness and should
meet the standards of the Government's Service First
initiative."
It
states that "in particular, inspectors should:
| (1)
|
meet
the standards set out in HSE34 The Health and
Safety Executive and You (file 35) and HSE35.
The Health and Safety Executive - Working with
Employers (file 80); |
| (2) |
provide
a copy of HSE and You After an Accident (HSEEW010
in England and Wales, and HSESC020 in Scotland); |
| (3) |
treat
all people fairly; respect their privacy and dignity;
be helpful and courteous; and pay particular attention
to those with special needs. |
In
order to achieve this there are ten key activities
Key
activity 1
CONDUCT OF INITIAL ON-SITE ENQUIRIES
| 2 |
When
making initial contacts and enquiries on site,
inspectors should:
| (1) |
establish HSE's presence on site and secure
appropriate co-operation for the investigation; |
| (2) |
identify
people in control; |
| (3) |
gather initial information about what has
happened, or verify reported detail; |
| (4) |
consider whether there are any obvious continuing
risks, including those arising from the
effects of the incident, to the health or
safety of those on site, including the investigating
inspector(s), or to the health or safety
of others such as the emergency services
(But bearing in mind the legal duty to carry
out a risk assessment still remains with
the employer. Whilst we may give advice,
our legal duties are primarily towards ourselves
and those who may be affected by what we
do.); |
| (5) |
ensure the integrity of the site, and the
identification and preservation of evidence; |
| (6) |
decide whether any immediate action is required
to prohibit any activity or to call upon
specialist support; |
| (7) |
begin
to identify reasonable lines of enquiry |
| (8) |
identify
any special needs, for example the services
of interpreters (see OC 19/4 Services of
Interpreters); |
| (9) |
ensure liaison with the HSE office, if necessary,
so that interested parties can be kept up
to date with developments; |
|
| 3 |
If the emergency services are still at work to
rescue people or make conditions safe, these efforts
should take priority over the HSE investigation.
In these circumstances they will retain control
over the scene. Inspectors should make contact
with the senior officer on site and, if relevant
and appropriate, discuss arrangements for the
preservation of any evidence. |
| 4 |
Occasionally
after an event such as an explosion or a collapse,
an inspector will be faced with a 'rugby scrum'
consisting of insurance company representatives,
loss adjusters, police officers, fire officers,
local authority building control officers etc.
It is important that inspectors record names and
prioritise their importance at an early stage
to enable contact later if necessary. |
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Key activity 2
CONTACT ON SITE WITH DUTYHOLDERS AND THEIR REPRESENTATIVES
| 5 |
As
soon as possible after arrival, inspectors should
make contact with an appropriate representative
of the main dutyholder on site, and reach agreement
about the initial arrangements for the conduct
of the investigation. (This arrangement should
not compromise any need to rapidly enter the premises
or site unannounced.) |
| 6 |
Inspectors should establish the identities of
the dutyholders together with the legal status
of the organisation, e.g. limited company or partnership
(confirm later, if necessary, by company search).
This will be particularly useful in the event
of any enforcement action when the names of partners
may be needed. |
| 7 |
The
level at which inspectors should make contact
with dutyholders will depend on the circumstances
and the size of the organisation being visited.
In some circumstances, e.g. investigation of a
fatality, contact at a senior level of management
will be appropriate in any size of organisation,
although in large companies first contact may
be with a safety professional or a known management
contact. In small organisations contact should
be with the most senior management or supervisory
representative on site. |
| 8 |
If necessary, inspectors should advise the representatives
seen of the general purposes of HSE investigations,
the powers of inspectors, and, if relevant, HSE's
role in an emergency situation. |
| 9 |
They
should also agree with the representative initial
arrangements for the conduct of the investigation.
These should cover, as appropriate, arrangements
for:
| (1) |
accompanying
the inspector(s) on site; |
| (2) |
safe
access to the location of the incident; |
| (3) |
interviewing; |
| (4) |
contact
with employees' representatives; |
| (5) |
communications
with the HSE office. |
|
| 10 |
Occasionally, at an initial meeting, dutyholders
or senior managers may offer unprompted explanations
for an incident, or other voluntary admissions
that could prove helpful in any subsequent proceedings.
See Enforcement Handbook Chapter 2 for guidance
concerning voluntary statements. |
| 11 |
If
the investigating inspector(s) cannot complete
an investigation in one visit, they should not
leave the site without informing the dutyholder(s),
or their representative, of:
| (1) |
the status of the investigation and, in
broad terms, the action that the inspector
proposes to complete the investigation (but
see para 12); |
| (2) |
any action, so far identified, that the
dutyholder(s) should take to comply with
the relevant statutory provisions or other
applicable legislation; |
| (3) |
any enforcement action taken at the visit; |
| (4) |
whether
they plan a further visit to site, or elsewhere,
and the purpose of that visit; |
| (5) |
the need to preserve the scene and leave
items undisturbed (supported by formal notice
if necessary); |
| (6) |
how
the inspector proposes to communicate the
conclusions of the investigation to the
dutyholder and employee representatives. |
|
| 12 |
Inspectors
should only indicate what action HSE will take
if they have previously agreed this with their
line manager. Inspectors should ensure that they
do not prejudice the final outcome of an investigation.
It is important that decisions are only made after
final conclusions have been reached about causation
and culpability and when sources of evidence and
reasonable lines of enquiry have been identified
and assessed. |
| 13 |
At the conclusion of an investigation, inspectors
should provide dutyholders with confirmation of:
| (1) |
any action they should take to comply with
the relevant statutory provisions or other
applicable legislation; |
| (2) |
whether
HSE in England and Wales may take legal
proceedings against them or, in Scotland,
report to the Procurator Fiscal; |
| (3) |
whether
the inspector has served an immediate or
deferred Prohibition Notice (PN) upon them,
and whether the inspector proposes to issue
an IN; |
| (4) |
whether
the inspector proposes to send a letter
to the dutyholder confirming advice or whether
the dutyholder wants the inspector to send
a letter; |
| (5) |
how the inspector will communicate information
to employee representatives; |
| (6) |
whether the inspector will pay a further
visit to monitor compliance; |
| (7) |
whether
they should confirm in writing to the inspector
the action taken to comply with the relevant
statutory provisions and prevent a recurrence. |
|
| 14 |
If
the inspector is not on site at the conclusion
of the investigation, they should make a decision
as to the most appropriate method of communicating
the above to the dutyholder in the circumstances. |
| 15 |
If
appropriate, the inspector should also give the
dutyholder an opportunity to relate their views
regarding the incident, particularly if prosecution
is being considered. Such an interview may need
to take the form of a voluntary statement (see
Enforcement Handbook Chapter 2). |
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Key activity 3
CONTACT WITH THOSE AFFECTED AND WITNESSES
| 16 |
If the reported incident has resulted in anybody
being hurt then they should be interviewed in
every investigation unless there are exceptional
circumstances preventing this. Interviews should
normally be in person, but may be by phone where
this would not hinder the outcome of the investigation.
If the inspector proposes, for other reasons,
not to contact the Injured Person (IP), they must
agree this with their line manager. The Code for
Crown Prosecutors (published by the CPS and available
under 'Publications' at www.cps.gov.uk) indicates
that the views of the victim or the victim's family
over the likelihood of a prosecution or not should
be considered |
| 17 |
The
inspector should inform the injured person (IP)
of the outcome of the investigation. |
| 18 |
As
a general principle, the inspector should interview
the IP as soon as possible after the incident. |
| 19 |
The
leaflet HSE and You After an Accident (HSEEW010
in England and Wales, and HSESC020 in Scotland)
should be given out to all those affected by the
accident. This leaflet explains our role, responsibilities
and standards. Alternatively, inspectors should
inform the IP of our role and objectives in an
investigation. Explain that HSE investigates incidents
to ensure reoccurrence is prevented and to establish
whether the dutyholder has complied with the law.
Explain the distinction between criminal law and
civil law and, if asked, advise the IP to contact
an employee representative or solicitor for legal
advice as to pursuing any civil claim. Explain
that HSE does not get involved with this process
but can supply information at a later date once
the investigation is complete or legal proceedings
have finished. |
| 20 |
If
the IP has been hospitalised, then inspectors
should only interview them with the consent of
those responsible for their care. Make contact
with the senior nursing staff who will advise.
Employment Medical Advisory Service (EMAS) may
be able to offer advice in circumstances where
the IP may be traumatised or under the influence
of treatment drugs. The latter may make evidence
inadmissible. Take into account the feelings of
the IP with regard to timing of interview. |
| 21 |
Witnesses to serious incidents may be suffering
from post-traumatic stress. Inspectors should
interview them in accordance with the guidance
in OC 171/1 Post Traumatic Stress Disorder. |
| 22 |
Inspectors should identify and interview witnesses
of fact, normally in person, but, where appropriate,
by phone. Inspectors should use the information
the witnesses provide to establish an adequate
and accurate understanding of:
| (1) |
the circumstances leading up to and at the
time of an accident; |
| (2) |
the
scene immediately afterwards (this is particularly
important when there are no immediate witnesses
to a fatality); and, |
| (3) |
any gaps in the details being discovered. |
|
| 23 |
As a general principle, inspectors should always
try to establish whether people other than those
directly affected were exposed to the same risk(s)
at or before the time of the incident. Evidence
to this effect can add weight to any subsequent
prosecution. |
| 24 |
As
a general principle, inspectors should interview
all witnesses as soon as possible after the incident
so that:
| (1) |
details
will be easier to recall; |
| (2) |
there
will have been less opportunity for collusion
between witnesses, or attempts to influence
their evidence; |
| (3) |
it
should be possible to use their natural
desire to co-operate in finding out what
has gone wrong. |
|
| |
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Key activity 4
CONTACT WITH BEREAVED RELATIVES
| 25 |
HSE's
policy on contact with bereaved relatives is
described in OC 167/8 Contact with and
Disclosure to the Relatives of Persons Killed
through Work Activities, and should be followed
in all relevant circumstances. Inspectors should:
| (1) |
in England and Wales, complete leaflet MISC199
Advice and Information for Bereaved
Families, (file 167) and |
| (2) |
in
Scotland, complete leaflet MISC200
Advice and Information for Bereaved Families
(Scotland) (file 167) |
with
the necessary details and send it to an appropriate
contact. |
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Key activity 5
CONTACT WITH EMPLOYEES' REPRESENTATIVES
| 26 |
Inspectors
should make early contact with employees' representatives
to let them know that an investigation is taking
place and that they will be informed in accordance
with HSW Act s.28(8). For further guidance see
OC 111/2.
Contact with Safety/Employee Representatives by
HSE Inspectors at Visits. |
| 27 |
Employee representatives may also be potential
witnesses. They may be able to give information
about:
| (1) |
working
practices and events prior to the incident; |
| (2) |
changes in conditions following the incident; |
| (3) |
other
witnesses management may be unaware of
|
| (4) |
previous
near misses or similar incidents; and |
| (5) |
relevant
minutes of safety meetings. |
|
| 28 |
Contact
at an early stage of an investigation will help
to explore any potential contribution they may
have as witnesses. |
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Key activity 6
CONTACT WITH SOLICITORS REPRESENTING THOSE INVOLVED
| 29 |
Inspectors
may encounter solicitors during an investigation
if:
| (1) |
a
dutyholder chooses to be represented or
advised by a solicitor; |
| (2) |
a solicitor has been appointed to represent
one of the parties in possible civil proceedings
arising from an incident, or at an inquest; |
| (3) |
a
solicitor has been appointed by another
interested party, such as a pressure group. |
|
| 30 |
Inspectors
should observe current instructions concerning
the disclosure of information if contacted by
solicitors, and ensure relevant material collected
during an investigation is retained in an easily-retrievable
form. |
| 31 |
Solicitors
acting for dutyholders
| (1) |
A
dutyholder may appoint a solicitor as their
representative at any point in an investigation.
In addition, a large undertaking with its
own legal department may instruct one of
their legally-qualified staff to accompany
the inspector. If necessary, inspectors
should refer such representatives to the
powers of inspectors contained in HSW Act
s.20. Inspectors should not permit them
to obstruct the investigation or the collection
of evidence, and they do not have a right
to be present during the interviewing of
employees or other witnesses (apart from
the dutyholder), unless the interviewee
nominates them to be present. |
| (2) |
If
necessary, inspectors should advise solicitors
that HSE will supply advance information
and disclose unused relevant material only
if we take a decision to prosecute, and
we institute legal proceedings (see Enforcement
Handbook - England and Wales, Chapter 5
Pre-trial Procedure). In Scotland, the Procurator
Fiscal will handle relationships with solicitors
in relation to prosecutions; inspectors
may, however, receive requests to be precognosed
(interviewed) by solicitors before cases
come to court. Inspectors should cooperate
with such requests. |
|
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Key activity 7
CONTACT WITH MEMBERS OF THE PUBLIC, INCLUDING PRESSURE
GROUPS
| 32 |
Inspectors
should contact members of the public who may
be witnesses. It may also be helpful to liaise
with local residents, if the incident has generated
off-site concern.
|
| 33 |
Pressure
groups may also express concern following an incident,
and request advice or information. |
| 34 |
In a small minority of investigations, community
liaison may be appropriate to allay the concerns
of local residents, who might otherwise find it
necessary to raise these through measures such
as letters to MPs etc. Liaison may help an investigation
by revealing information concerning previous near-miss
occurrences or information about the progress
and sequence of an incident and emergency measures
afterwards |
| 35 |
Liaison can be achieved by
| (1) |
attending
community liaison meetings organised by
the main dutyholder (representatives of
resident'sassociations and parish councils
may wish to be involved); and |
| (2) |
attending
press conferences. |
|
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Key activity 8
LIAISON WITH OUTSIDE AGENCIES
| 36 |
Inspectors
should make contact, when appropriate, with representatives
of other enforcement agencies such as the police,
local authorities, other government departments,
licensing authorities to:
| (1) |
implement agreements or memorandums of understanding
entered into by HSE; |
| (2) |
determine
roles and responsibilities for the investigation; |
| (3) |
ensure
the effective use of resources; |
| (4) |
use
them as expert witnesses if appropriate;
and |
| (5) |
avoid
potential difficulties with legal proceedings
and evidence collection. |
|
| 37 |
Contact should be at an appropriate level and
be timely. Inspectors should make early contact
and, if appropriate, hold meetings so that the
parties involved can determine each other's objectives
and roles in an investigation. This will facilitate
co-ordination, preservation of evidence and will
avoid potential problems during an investigation
and any subsequent action taken. Such contact
has proved valuable in some fatal accidents where
manslaughter charges have been a possibility,
and in accidents or incidents where more than
one authority has had an enforcement role. See
also Work instruction 5
Key activity 5 and Key activity 6. |
| 38 |
Outside agencies can be the source of information
or evidence useful to an HSE investigation. Examples
include the police, Fire Service, Meteorological
Office, Environment Agency, the Scottish Environment
Protection Agency, and trading standards departments.
Inspectors should contact an appropriate representative
to acquire the necessary assistance if appropriate. |
| 39 |
In
the case of a fatal accident, refer to the Enforcement
Handbook - England and Wales Chapter 12 concerning
liaison with police, CPS and coroner. In such
circumstances, inspectors should also be aware
of
OC 165/8 Work-related Deaths: Liaison with
the Police and Crown Prosecution Service.
Inspectors in Scotland should see Enforcement
Handbook - Scotland - chapters 1, 5 and 9]. |
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Key activity 9
CONTACT WITH THE MEDIA
| 40 |
If
media interest is foreseeable, arrangements should
be made to deal with requests for information,
statements or interviews in such a way as to ensure
a professional and informed response, whilst allowing
the investigating inspector(s) to progress the
investigation with a minimum of distraction. |
| 41 |
Initial requests for information will normally
be made via a regional office of the Central Office
of Information (COI). The COI will contact the
inspector involved to establish HSE's position,
agree a comment and issue it on HSE's behalf.
The COI can also sift media requests on behalf
of HSE staff, find out all the details and help
decide on the best course of action. This takes
the pressure off HSE, avoids complications and
provides thinking time to plan an appropriate
response. Direct enquiries from the media should
be redirected to the COI. |
| 42 |
An
inspector should be nominated to liaise with the
COI, and respond to media requests for radio or
television interviews. In high-profile cases,
this should be the head of operations or another
band 1, but may be a band 2, or experienced band
3 who has received training in media-handling
skills. |
| 43 |
Despite
any arrangements made for handling the media,
investigating inspector(s) may meet press, television
or radio interviewers on site and be asked to
comment. |
| 44 |
HSW
Act s.28(8) prevents the disclosure of relevant
information about the specific circumstances of
an incident, but a response should be made to:
| (1) |
confirm that HSE is conducting an investigation,
if that is the case; and |
| (2) |
outline
the objectives, namely to identify the circumstances,
ensure a reoccurrence is avoided and to
examine the dutyholder's legal responsibilities
in relation to the incident. |
|
| 45 |
Avoid
any speculation about the incident being investigated.
It is not unreasonable to ask for a few minutes
to prepare a brief statement. |
| 46 |
Inspectors should not release details of casualties
to the media: this will be done by the police. |
| 47 |
Most incidents will not result in media attention.
Fatalities, multiple serious injuries, accidents
involving members of the public (particularly
children), incidents which cause damage off site
or were heard or seen (e.g. explosions or fires)
from outside the site boundaries are most likely
to receive media interest. |
| 48 |
Inspectors should also consider, when appropriate,
the benefits of proactively contacting the media
via the COI to seek publicity for the lessons
to be learned from investigations, particularly
prior to a court hearing. |
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Key activity 10
RECORDING INFORMATION DURING AN INVESTIGATION
| 49 |
Adequate
records should be kept of contacts made during
an investigation. |
| 50 |
Investigations inevitably result in contacts,
which may be in person, by phone or in writing.
In many cases the only record that needs to be
kept will be a FOCUS contact report (see
Work instruction 9). However,
records made as an investigation progresses may
prove to be crucial, and inspectors should ensure
that a clear note is made of any important contacts.
Examples include:
| (1) |
statements
which may be construed as an admission of
fact ('this is the way we have always done
this') even though the speaker has not been
cautioned and is not giving an HSW Act s.20
statement (refer to Enforcement Handbook
- England & Wales Chapter 2 or Enforcement
Handbook - Scotland Chapter 2, as appropriate,
in such situations); |
| (2) |
discussions in which the contact, or the
inspector, agrees to undertake any course
of action, and the detail of the agreement; |
| (3) |
contacts
with groups or individuals, such as pressure
groups asking for information, who may subsequently
prompt scrutiny of decisions made at the
conclusion of an investigation. |
|
| 51 |
In some investigations, the use of a contacts
log will help to ensure record keeping. In most
investigations, individual inspectors will use
the G2 notebook alone to record their contacts.
If inspectors make careful, contemporaneous records
in the notebook, they may subsequently be able
to refer to these in court. Take care to avoid
the appearance of inconsistencies between notebook
entries and evidence to prove a case. For this
reason, record preliminary findings and tentative
views as such. Records should contain sufficient
detail to demonstrate their accuracy and reliability,
for example, clear and unambiguous details of:
| (1) |
location; |
| (2) |
dutyholders
visited; |
| (3) |
the names and positions of individuals interviewed,
and clear details of any comments or observations
attributed to them, or to the inspector |
| (4) |
factual
detail observed as part of the investigation;
and |
| (5) |
the
participants in significant discussions,
key points made and decisions or agreements
reached. |
|
| 52 |
In England and Wales, once an inspector refers
to their notebook in court, the defence may cross-examine
on its entire content, not just that relating
to the investigation in question, and try to throw
doubt onto an inspector's ability to remember
events, and thus, their evidence. Inspectors may
decide to start a new notebook to record details
of the investigation of any significant incident,
so that extraneous material cannot be raised in
any subsequent proceedings. (See OC 168/5
paras 12-15.) |
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