We consider the importance of understanding the role of the Regulator and points to consider when an Inspector calls.
There are many reasons why a regulator such as the Health and Safety Executive (“HSE”), the Environment Agency or your Local Authority may visit your business or place of work. They could be responding to a complaint or tip off about unsafe practices, carrying out a spot check on a construction site, checking that any notices they have issued previously have been complied with or they could be visiting to work with you in respect to the introduction or update of a licensing or permit scheme.
The powers available to inspectors, whilst wide ranging, are not limitless and it is important to do what you can to protect your position, or the position of your business, and ensure compliance if any enforcement action is taken. Investigations often result in criminal prosecutions and businesses face large fines if they are convicted. This article aims to cover the basics of what you need to know when an inspector calls.
Put procedures in place
You will have in place a range of policies and procedures relating to circumstances when something goes wrong. However, many businesses, even very large ones, overlook establishing a robust procedure in respect of regulatory intervention with the result that there is a failure to exercise any control over or involvement in the inspection or investigation. This might permit an Inspector wider ranging access to areas of premises and personnel than is in fact necessary or intended. It can also lead to misunderstandings in relation to work activities because Inspectors do not end up speaking to the most appropriate people within the organisation to fully explain processes and procedures.
We recommend that there should be a designated individual who is able to meet the Inspector when they arrive on site, sign them in and deal with Personal Protective Equipment if and when required. The nature of the inspection can then be established and a clear understanding gained as to whom the Inspector needs to speak to, what documentation they are likely to require and which parts of the premises they are likely to need or want to see. The designated individual can then guide the inspector around the site, staying with them at all times and liaise with them going forward where necessary.
Designating this role to one person ensures that a consistent approach is taken throughout the investigation and no mixed messages or contradictory evidence is obtained. It is likely that inspectors will want to follow up after their visit and dealing with only one person ensures that any further action required is dealt with thoroughly and efficiently. Again, often when there are lots of people involved, it leads to some issues ‘falling between the cracks’.
Always be polite
Investigations often begin at stressful times, such as when an accident has occurred, and so it is easy to feel like you need to be defensive with inspectors. The best approach to take with inspectors is to be polite but firm. It is important to assist inspectors with their investigation as failure to do so can amount to a criminal offence. In essence whilst the Inspector has legal powers (some which are very specific to HM Inspectors of Health & Safety and Local Authority Inspectors) they are not without limit and whilst providing assistance is usually to be encouraged, you must appreciate where to draw the line between obstruction and merely asserting your rights as a duty holder.
It is obviously crucial that you are truthful when dealing with Inspectors as intentionally trying to mislead them can have serious ramifications. If you do not know the answer to a question, it is perfectly acceptable for you to say so and to make further enquiries with colleagues to answer the question at a later date. You should avoid speculating or providing opinions even if you are pressed by the Inspector for an answer.
Ask for requests to be made in writing
Asking for requests for production of documents or objects to be made in writing allows you to both keep a record of what has been provided to the inspector and allows you the opportunity to consider why they have been requested. If any documents are taken by the inspector on the day, ensure that you keep a full written record of what has been handed over.
Involve your solicitor
Involving your solicitor as early as possible means that in many cases we can assist with the investigation. Not only does this assist with the quality of the initial investigation it can mean that documents created during investigative activities undertaken in your defence are subject to privilege. It is generally inadvisable to carry out your own internal investigations and try and assert privilege retrospectively. We can lead internal investigations and interview potential witnesses, instruct experts and seeking to protect your position from the outset. We can also advise on any enforcement notices issued by the regulator often seeking to prevent them being issued and/or influencing the terms of the same.
Early involvement of your Solicitor gives you the best chance of avoiding any prosecution altogether but, where that is not possible, having your lawyers shadow the initial investigation can be invaluable in ensuring that they have a clear understanding of the chronology of the investigation and the material generated during the course of the same. You and those advising you are otherwise likely to be left guessing as to what material the HSE have until it is levelled against you in Court.
It is also advisable to notify your insurer if it any enforcement action is taken by a regulator. We are panel solicitors for a number of legal expenses insurance providers. Under the Insurance Companies (Legal Expenses Insurance) Regulations 1990, even if we are not a panel firm for your chosen insurer, you have the right to choose your own solicitor and we can provide representation for you, funded by your insurer.
If you are subject to an investigation by the Health and Safety Executive or any other regulator or if you require assistance in responding to or appealing enforcement notices or responding to prosecution proceedings, please do not hesitate to contact Lachlan Nisbet or Charlotte McRae who would be delighted to assist you.
