Lessons from the Archers for Health and Safety Lawyers

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Lessons from the Archers for Health and Safety Lawyers

Published 2 April 2020

While Covid-19 has not yet reached rural Ambridge, residents are currently grappling with the aftermath of the explosion at Grey Gables, a fictional country house hotel where building work was taking place involving a local contractor. One character (a hotel employee) suffered serious injuries and was close to death. As the plot unfolds we learn that the contractor was cutting corners and using petrol in place of solvent which ignited when one of his workers lit a grill. The hapless worker is seriously injured and is recovering in hospital where his employer is “having words” with him with a view to getting their story straight before the police interview him. The threat of prosecution looms as the worker is told by his employer that he is at risk of serious criminal charges if he doesn’t admit to his “mistake” and save his employer and himself. Questionable conduct, but could this happen outside the confines of a Radio 4 soap?

This is not our experience in the real world. Following a serious incident organisations and their insurers will commission an early investigation, which is often conducted under legal privilege. This will examine possible causes before considering legal risk and if remedial actions are required. For some public sector organisations a “duty of candour” will apply which requires them to be open when things go wrong. Depending on the size and scale of the incident the organisation may have a disaster management plan to implement. This should include arrangements for communicating with workers, regulators, the media and other stakeholders. It is important to interview potential witnesses as early as possible and to obtain their unvarnished accounts of events, while recognising that a witness who has been involved in questionable behaviour (not following work instructions or cutting corners, in our fictional example) or whose interests may diverge from his employers may require independent legal advice.

Regulators take a dim view of any suggestion that a witness is being influenced by his employer. This may become clearer as the Archers plotline develops. In the real world the regulator is unlikely to allow the employer or his solicitor to sit in on interviews. It is a criminal offence to obstruct a health and safety inspector as he carries out his duties, or to falsify statements or records. At the very least, failing to cooperate with the regulator’s investigation will have an impact at a later sentencing hearing, when the court is required to consider under the Sentencing Guideline if there has been any “deliberate concealment” or falsification of documentation and if so, will penalise accordingly. Conversely, self-reporting, co-operation and acceptance of responsibility, however painful for our fictional characters, are mitigating factors which will reduce the financial penalty. It may also help to maintain the organisation’s standing and reputation with its workforce and its customers long after the incident.

For more information or advice, please contact one of our experts in our regulatory team.

Authors

Sally Roff

Sally Roff

Newport

+44 (0)163 365 7780

Fiona Gill

Fiona Gill

London - Walbrook

+44 (0)20 7894 6410

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