31 Jan 2019

Managing a critical incident, maintaining regulatory compliance and the cost of getting it wrong are all issues that have the potential to keep Legal Counsel awake at night.

It was for this reason that the theme "Are you doing enough to protect you organisation?" was chosen for the health & safety seminar, delivered by Steve Panton as part of the Informed Counsel conferences in our London and Newcastle.

The aim of the seminar was to share our knowledge and insight with Legal Counsel of how to manage the impact that can be caused by a serious event. The seminar also included recent legal developments, such as the introduction of the Definitive Guideline for the sentencing of individuals convicted of gross negligence manslaughter, and enforcement trends that we are seeing. Those present were also encouraged to share risk management best practice techniques and discuss corporate governance strategies in place within delegates' organisations to reduce the liabilities of individual directors and officers.

The importance of being prepared for a critical incident and ensuing regulatory investigation cannot be underestimated as the reputational and financial consequences of making the wrong decisions in the first few hours and days after a serious incident can be, and often are, significant.

Having an effective critical incident management policy not only increases an organisation's ability to identify and assess its potential liabilities but also to ensure an appropriate and consistent approach is taken when interacting with regulators and/or the police, responding to media and third party enquiries and in other key areas such as document management and, where appropriate, the need to maintain legal privilege.

The message is that without having a critical incident management policy in place, organisations, and potentially also individual directors, will immediately be on the back foot.

Relevant to the liability of individual directors, there continues to be a rise in the number of prosecutions brought against directors and senior managers for health and safety offences, particularly gross negligence manslaughter. Compared with enforcement action taken in 2013, the number of prosecutions involving company officers has almost doubled, with over a third of those convicted receiving an immediate or suspended custodial sentence. Enforcement statistics released over recent years demonstrate the extent to which directors are increasingly being held accountable for the failings of their organisation.

Ensuring that health and safety is integrated into an organisation's main governance structures is key to reducing both corporate and individual liability. Having an effective management system in place allows members of the board to make sure and, if necessary, be able to demonstrate, that health and safety arrangements are adequately resourced, that there are competent personnel in place to provide advice, that work-related risks are being adequately assessed and controlled and that there is sufficient employee engagement, particularly where changes to working practices and equipment are proposed that have the potential to effect health and safety.

We also discussed the importance of taking consistent and proportionate disciplinary action in the event of a failure by personnel, both employees and management, to adhere to an organisation's policies, procedures and safety systems of work. Addressing all instances of non-compliance with the support of the board is of fundamental importance. Having a robust disciplinary policy will not only ensure that an organisation maintains a good safety culture but also serve to show positive health and safety leadership.

The importance of ensuring the wellbeing of employees was also explored. With the number of working days lost due to occupational disease and ill health, particularly mental health issues, now far exceeding absences due to injuries suffered as a result of accidents, is it clear that the measures taken by organisations to minimise the risks of work-related stress and steps taken to promote wellbeing are likely to come under increasing scrutiny by regulators. Whilst high risk areas, such as working at height, workplace transport and gas safety, will remain enforcement priorities for the Health and Safety Executive and local authorities, it is predicted that the adequacy of an organisation's safety culture and management behaviour is likely to become the subject of more frequent and targeted investigation.

Having a formal mental health at work plan in place, and giving the assessment and control of risks to mental health the same priority as the risks capable of causing physical injury and harm should not only assist employers to manage mental health problems at work but also maintain staff morale and employee retention levels and minimise the potential for a regulatory investigation and reputational damage.