Let's put this in perspective. Fatal accidents in the workplace are rare - 180 in Great Britain in 2008/9 and most arise in agriculture and construction. Because they are uncommon, and unexpected, organisations are often not sure how to respond. The following guidance is intended to assist in the (hopefully) unlikely event that a fatality in the workplace occurs.
Key factors to consider are:
Immediately report a workplace death to the Health and Safety Executive (HSE) on 0845 300 9923. Follow up the verbal report with a written report online, by email or post. Failure to report is a criminal offence.
Seek specialist legal support and advice from the outset. The first 24 hours after an accident can be critical. If there is to be a prosecution arising from a fatality the case will be heard in the Crown Court and generally a minimum fine of £100,000 can be expected. If there is to be a corporate manslaughter charge, the starting point on conviction for the fine is currently proposed to be 7% of turnover. Involving lawyers with the experience and expertise to provide support from the outset may deflect potential charges, and will certainly help to minimise impact. Don't be fobbed off by cheap insurer panel firms either – you have a legal right to choose your own advisers.
Ensure that the scene of the accident is preserved. Protect others from risk but leave everything at the scene as it was at the time of the accident. You will receive a visit from the police and the HSE or local authority (LA). The HSE or LA will usually confirm an appointment for their visit. The police generally just turn up. The police will be investigating any unlawful killing charges such as corporate manslaughter or gross negligence manslaughter. They will also gather evidence for the local coroner. The HSE or LA will be interested in any health and safety law breaches. The Work Related Deaths Protocol should ensure that investigating authorities work together to avoid overlap and to co-ordinate any prosecutions. Often you find both the HSE and the police at interviews. Although you are obliged to assist with enquiries, that is not the same as handing them a case to prosecute. Record what documents or other items are taken and don't attend an interview under caution without first obtaining legal advice.
Notify the deceased's immediate relatives and offer support to them. They may need practical assistance or financial support. What is appropriate/possible will depend on the facts. An offer of help is an act of human kindness and showing compassion is not an admission of guilt. If you are guilty of an offence, how you have dealt with relatives does weigh with the courts.
Be sensitive to the impact that a fatality will have upon your workforce. They may feel a sense of personal responsibility (whether or not justified), shock (that could have been me), stress (particularly if they witnessed the accident). Ensure those who may be affected have access to independent, confidential counsellors. Those who feel vulnerable will often try to deflect blame from themselves, particularly in interviews, and they often do so by blaming others which may put managers/directors at personal risk of prosecution as well as the organisation. Individuals undergoing interviews need representation independent of the organisation's legal advisers. Ensure that they are legally advised so that they don't feel any unnecessary vulnerability. They need to be honest in their evidence but they don't need to speculate or give opinions. Make sure that they are aware of this.
Don't forget to notify insurers. You may have a claim under your employer's or public liability policy for an indemnity or contribution to your defence legal costs and also, potentially, for prosecution costs. The policy is also likely to indemnify you for civil liability for damages (subject to any policy deductible that may apply). Late notification can jeopardise the policy cover.
Think about managing media coverage of the incident. This is likely to include local coverage but may, depending on the circumstances, attract national coverage. Pre-prepared statements can help but be careful what you say and consider obtaining legal advice first.
Ensure that you/your lawyers liaise with the coroner. The coroner will be obliged to hold an inquest with a jury to ascertain who has died, how and when and where the deceased came by their death. You need to ask to be recognised as an "interested party" at the inquest. The deceased's family will use it, as will the HSE, as an early opportunity to hear and cross examine witnesses. You should be legally represented at the inquest to protect your position. It is normally appropriate for an organisation to have a senior representative present as well.
Be careful what you commit to writing. Any internal report regarding the circumstances of a fatal accident is likely to be a document which the police/HSE/relatives can access. Criticising with hindsight is easy to do and can help in a claim against the organisation so keep it factual. Consider with your lawyers ways in which the report might be kept privileged from production should you wish to keep it confidential. See the forthcoming part 4 of this guide for more on how privilege can be obtained.