"...desired economic progress may be accompanied by an unwelcome rise in the rate of people being injured and killed in workplace accidents."
HSA Annual Summary of Injury, Illness and Fatality Statistics, HSA, 30 June 2015
The rate of workplace accidents in Ireland is increasing. According to the recently published Health and Safety Authority (HSA) Annual Summary of Statistics for 2014, 56 fatal and 7,431 non-fatal workplace accidents were reported to the HSA in 2014. This is an increase of 9 fatal and 833 non-fatal accidents from 2013. The number of health and safety prosecutions is also on the increase, with 32 prosecutions being concluded in 2014, up 4 from 2013, according to the HSA's recently published Annual Report for 2014.
An accident can occur in any workplace and the consequences can be significant. For example, a workplace accident exposes employers to the risk of litigation and in certain cases, to criminal prosecution. These consequences can be mitigated, however, by some careful forward planning. Here are 10 tips for being 'accident-ready'.
BEING 'ACCIDENT READY': 10 TIPS FOR EMPLOYERS
1. Put an accident protocol in place:
Every workplace should have a basic accident protocol. This should include:
- the steps to be taken following an accident;
- a list of key contacts;
- details of reporting obligations to the HSA;
- an outline of how internal and external communications will be managed; and
- details of plans and procedures (required under the Safety, Health and Welfare at Work Act) for emergencies and/or serious/ imminent dangers.
2. Preserve the scene:
In the immediate aftermath of an accident, attention will naturally be diverted to caring for the injured person/s. However, it is also extremely important to identify and address any immediate hazard as soon as possible. Clear and preserve the scene of the accident and any relevant evidence to prevent re-occurrence and facilitate investigation. For fatal accidents, HSA guidance requires preservation of an accident scene for 3 days post-notification of the accident to the HSA.
3. Consider your reporting obligations:
Certain accidents must be reported to the HSA and it is important to familiarise yourself with the reporting criteria and timeframe within which such accidents must be reported. Fatal accidents must be reported to the HSA by "the quickest practicable means". Other reportable occurrences must be reported "as soon as practicable" by way of written report. You should also consider whether you have any other reporting obligations, for example, to the Gardaí, your insurers, or your solicitors.
4. Be prepared for a HSA investigation:
The HSA is obliged to investigate all workplace accidents and will nominate an Inspector to conduct an investigation on its behalf, who will typically arrive at your workplace very quickly after an accident is reported. HSA Inspectors have very broad powers including powers to enter a workplace, inspect work activities, direct the preservation of evidence/work areas, require the production of records and summon individuals for interview. It is helpful to designate a senior employee to coordinate the response to the accident and to liaise with the HSA Inspector.
Be aware that a HSA investigation is a criminal investigation and may result in a criminal prosecution against you and/ or your employees.
5. Keep all relevant records:
Ensure that any records that may be relevant to the accident and/or the investigation are retained pending the outcome of a HSA investigation/ prosecution.
6. Think before handing over documents:
You are obliged to produce documents and other records when sought by the HSA Inspector, but you should take care in doing so.
- Provide copies only (not originals) and be sure to take a second copy of everything given to the Inspector.
- Do not give more than is requested.
- Do not give anything referring to legal advice or involving a lawyer until you have confirmed (with your lawyers) whether it is legally privileged.
- If in any doubt, ask the HSA Inspector to write to you setting out the request for your records.
- Ensure all employees are aware that they should not provide copies of company documents unless they are properly authorised to do so.
7. Be careful about creating new documents:
Take care in creating new documents (including emails and other messaging forms) following a workplace accident as they may be sought by the HSA Inspector and/or disclosed in subsequent litigation.
Privilege may apply to certain documents created following an accident depending on their nature and context. If a document is privileged, it is important to protect it, for example, by marking the document 'confidential and privileged', ensuring that it is not circulated to anyone other than your lawyers and that it is not referenced in any other (non-privileged) document.
8. Be aware of your rights and obligations during HSA interviews:
The HSA Inspector may interview you, your employees and/or other third parties about the accident and the surrounding circumstances. You are entitled to have a solicitor present at your interview.
Interview statements may be taken voluntarily or 'under caution'. A caution given to an interviewee (that any statement made during the interview may be used in evidence) may signal a suspicion of wrongdoing and potential prosecution. Serious consideration should be given to taking legal advice before attending an interview under caution or before proceeding with an interview once a caution has been given.
Read the statement of the interview carefully before signing it. If you are not satisfied that it accurately reflects what you said to the Inspector, ask for the inaccurate section/s to be amended before you sign it. Request a copy of the signed statement from the Inspector. Ensure that all employees who are interviewed are aware of their rights and obligations also.
9. Do not delay in implementing or appealing a prohibition or improvement notice:
The HSA may serve an improvement notice and/or prohibition notice following a workplace accident, directing you to take certain measures to improve work systems or to stop certain work activities altogether. This can have profound implications for your operations and business. Once the notice is served, act immediately to implement the required actions and, if you are in doubt about what is required, ask the HSA Inspector for guidance. If you disagree with the notice, be aware that you can appeal to the District Court, but you must act quickly to bring an appeal as the time limits are short (7 days for a prohibition notice and 14 days for an improvement notice).
10. Learn from the accident:
Consider how to prevent a similar accident occurring in the future. Do your work systems need to be revised? Should further training be provided for employees? Carry out necessary and appropriate investigations to establish the cause of the accident and to change your work systems, policies and procedures to avoid re-occurrence, taking care, however, not to duplicate or interfere with the investigation/s being carried out by the HSA (or Gardaí).
Make sure that any changes to your health and safety systems, policies, procedures and training are recorded and your safety statement and other health and safety documentation are revised/ updated accordingly.
This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.