The Health and Safety Executive (HSE), local authority or Environment Agency can turn up at your premises at any time. Usually, but not always, they make an appointment. Following a report of an incident or accident, you can expect a regulator/authority visit - and the police if there has been a fatality.
Regulatory breaches can include exposing people to a risk of death or personal injury, causing or allowing environmental breaches such as noise, water or land pollution and misleading consumers culminating in a Trading Standards offence. Our experience shows that you won't necessarily be the first to report the event. Neighbours, competitors and employees snitch frequently! So what should you do to keep disruption, cost, effect on morale and reputational damage to a minimum when an inspector comes calling?
Dealing with the police, HSE, Environment Agency or local authority
What you must do - failure to comply may be a criminal offence:
- allow the inspector access to premises and to undertake any examinations and investigations reasonably necessary for the purposes of the enquiry
- adhere to any instructions given by the inspector and leave defined areas or equipment undisturbed for a reasonable period to enable the investigation to take place
- allow the inspector to take measurements, photographs, samples and such records as are considered necessary for the investigation
- adhere to instructions to dismantle (but not destroy) or test any item or substance if the inspector reasonably believes it may have or is likely to cause danger to health and safety
- produce to the inspector any specific documents requested which may assist the investigation. The inspector is not entitled though to access to any correspondence or advice to and from in house or external legal advisers if that correspondence is covered by privilege. See the forcoming part 4 of these guides for more on privilege
- comply with any Prohibition or Enforcement Notice served. It would be a criminal offence not to. For more on Prohibition and Enforcement Notices, see the forthcoming part 6 of these guides
Importantly, stay calm, ask questions, accompany the inspector and try and build a relationship with him or her. Keep a list (and ideally a copy) of any documents or items removed from site. Discreetly seek legal advice (which can normally be provided by ourselves) so you can be guided through the process to try to ensure that while the organisation is being seen to be co-operative, it is protecting its position as far as possible.
Giving statements to the HSE, Environment Agency or local authority
Voluntary oral statements. An inspector may ask for informal oral replies to questions about an incident. These statements are entirely voluntary and cannot be used against you in evidence. If you do decide to give one, keep to the facts and what you know. Do not be tempted to offer your opinion.
Voluntary written statements. You are not obliged to given a written statement but if you do provide one then be honest. Again, stick to the facts - don't speculate about what might have happened or offer opinion in relation to matters of which you are not directly aware. Make sure that what you are asked and your answers are taken down verbatim, and that what is produced is not just the inspector's summary of your evidence. Check your statement very carefully before signing. Since the statement is being given voluntarily, you can insist that you are given a copy as a condition of providing it.
Compulsory written statements. An inspector must be clear about the authority under which this statement is requested (e.g. Section 20 of the Health and Safety at Work Etc Act 1974). You must answer questions posed which are relevant to the investigation. You will be asked to sign a declaration of truth of your answers. Your evidence cannot be used against you as an individual, but may be used against the organisation. Be honest and stick to the facts - avoid opinion. You can ask for, but may not be provided with, a copy of your statement. You can ask for someone to be with you when you provide the statement (e.g. union representative or lawyer).
Compulsory statements under caution (Police and Criminal Evidence Act (PACE) interviews). These are formal statements taken when you are suspected of an offence. Seek legal advice before attending. You don't have to attend, and you don't have to say anything but it is important that you put forward at this stage a defence that may be available to you. The interview is recorded and may be used against you in subsequent proceedings. Ensure you know in advance the offences you are suspected of, and are given a summary of the evidence against you. You are entitled to a transcript of your statement. For more on PACE interviews, see the forthcoming part 13 of these guides.
Above all, remember that you don't have to go through this alone and that knee jerk compliance with every request made to you by an inspector may not be in your best interests. Legal advice can be obtained by telephone, immediately, and can help you ensure that you have the opportunity to reflect on the potential consequences of everything you do as part of the investigation, and so don't end up shooting yourselves unnecessarily in the foot.