Health and Safety Investigations and Prosecutions
The trend of increasing fines for companies convicted of health and safety offences continues with the courts scrutinising company accounts when sentencing to ensure that the importance of health and safety is brought home to the directors and shareholders.
Another trend is that regulators today are more likely to investigate the conduct of directors and senior managers. The courts can impose substantial fines and custodial sentences upon convicted individuals as well as disqualifying directors from holding office under the Company Directors Disqualification Act 1986.
All work related deaths are investigated jointly by the police and Health and Safety Executive (HSE) pursuant to the Work Related Deaths: A Protocol for Liaison. It is only when the police are satisfied there is no reasonable prospect for the conviction of a company under the Corporate Manslaughter and Corporate Homicide Act 2007, nor the conviction of an individual for gross negligence manslaughter, that the matter is passed to HSE to consider whether a health and safety offence may have been committed. There have only been a few convictions for corporate manslaughter under the Corporate Manslaughter and Corporate Homicide Act 2007, however the impact of the Act has been that many more companies now face lengthy police investigations.
It is essential that companies obtain early specialist legal advice in order to put in place a robust strategy for responding to the criminal investigation and managing reputational issues.
For senior individuals within a company who are subject to personally investigations for criminal wrongdoing, it is often good practice that independent legal advice is obtained. Whilst their interests may well be aligned with their company, there can be the potential for a conflict of interest
Bivonas Law is one of the leading white collar and regulatory litigation practices in the City of London. Bivonas Law provides specialist representation for corporate clients and senior individuals facing criminal investigation and prosecution by the police and safety regulators including the HSE, local authorities, the Office of Rail Regulation (ORR) and the fire and rescue service authorities.
Bivonas Law also acts in allied proceedings including:
Appeals against Prohibition Notices
A company served with a notice must submit an appeal within 21 days to the Employment Tribunal. It is therefore important that legal advice is sought promptly. In the light of recent case law there is now greater scope for appeal. Regulators sometimes seek to rely upon the fact that a company has not appealed a notice as evidence of its acceptance of a breach of health and safety law.
Challenging Fee for Intervention (FFI) notifications
HSE can now recover the cost of investigation under the FFI Scheme where there has been a material breach of health and safety law. If in an inspector’s opinion there has been a material breach a ‘notification of contravention’ will be sent to the company. If it is not accepted it is important to challenge the notification as this might be relied upon by HSE as acceptance by the company of breaching health and safety law.
Representation at Inquests into Work Related Deaths
Legal representation for companies and individuals identified by the Coroner as ‘properly interested persons’ is usually advisable. The evidence called at an inquest can often be an insight into HSE’s investigation and its likely approach in any subsequent prosecution.