Ireland: The Do's And Don'ts Of Dealing With Inspectors And Accident Investigations

Last Updated: 27 October 2014
Article by Peter Bredin
Most Read Contributor in Ireland, October 2018

Accident Protocol

A comprehensive accident protocol is of great assistance in dealing with an accident at the workplace. It is also a legal requirement under section 11 of the Safety, Health and Welfare at Work Act 2005 for every employer to have adequate plans and procedures to be followed and measures to be taken in the case of an emergency or serious and imminent danger. The Act also requires an employer to revise such plans and it would be prudent to consider now whether you need to revise your existing plan, to take into account any changes to the nature of the work or the workplace since the plan was drawn up or last revised.

The plan must meet the requirements of section 11, which provides for:

  • first aid, fire-fighting and evacuation procedures;
  • details of the local emergency services and procedures for contacting them;
  • designation of employees to implement the plan;
  • training and provision of appropriate equipment for those employees.

The plan must be specific, taking into account the nature of the work, the size of the workplace, and the hazards relating to that workplace. The plan must also comply with any requirements particular to the workplace, for example under an Industrial Emissions Directive Licence if applicable.  In addition, an effective accident protocol should clearly identify points of contact and responsibility within the company for liaising with the Health and Safety Authority ("HSA"), and the Gardaí, as well as managing both internal and external communications.

Immediate Aftermath

Obviously, the first concern will be to care for the injured person and to minimise the risk of further injury. Employees should be instructed to stop work and leave the workplace and must not be required to carry out or resume work where the danger still exists.

There are strict requirements for the reporting of accidents to the HSA. The employer is responsible for such notification. If a death has occurred, the HSA must be notified by the quickest practicable means. In all cases that are reportable, the HSA must be informed as soon as practicable, and the HSA prefers notification to occur online.  The description of any accident on the notification should be as factual as possible.  Failure to report is an offence.

The Investigation

For effective management of the situation post-accident, it is preferable to have one senior person who is designated to coordinate the response. If it is necessary to have more than one designated person, each such person's responsibilities should be clearly identified. For example, one might deal with the HSA and Gardaí, another might be responsible for contact with the victim's family and the media. Frequent contact between those persons will be of benefit. All employees should be informed as to who the designated person is. Subject to the obligation to respond to an inspector's questions (addressed below), it is preferable for only the designated persons to communicate with the inspector.

HSA inspectors have extremely broad powers but these are not unlimited. These powers are set out in section 64 of the Act.  The powers include entering the workplace, questioning any person, removing or copying records, directing that a place be left undisturbed, and taking photographs and measurements.

The inspector will wish to carry out interviews with employees and/or other witnesses. The designated person should coordinate these interviews. If necessary, the inspector should be asked to allow persons sufficient time in advance of an interview to gather his/her thoughts. Be mindful however of the obligation not to obstruct or delay an inspector from exercising his/her functions.

You should not coach an interviewee. It is an offence to prevent or attempt to prevent a person from answering an inspector's questions.

Statements may be taken by the inspector either voluntarily or under caution. A caution signals that the interviewee is suspected of wrongdoing and may be prosecuted. It may be prudent for interviewees to be offered legal advice before attending for interview, particularly if the interview will be under caution. Consideration should be given to whether the employee will need his or her own legal representation if there is potential for a conflict between the company and the employee, and you may wish to consider if the company will pay for this.

The most significant issue on which legal advice may be required is the privilege against self-incrimination.  The interviewee has a duty to respond to the inspector's questions, and to do so truthfully. The exception to the obligation to respond arises under section 64(9) where the response would incriminate that person (i.e. the interviewee). Incrimination of another person, such as the employer or a fellow employee, is not a valid reason to refuse to respond to a question.

Following the interview, the interviewee may be asked to sign a written statement. The interviewee should ask for time to carefully consider this statement before signing it, to ensure it is completely accurate, as it is an offence to declare something which is false or misleading.  The interviewee should also request a copy of the signed statement.

Documents

While employers are entitled to have an appropriate document destruction policy, any scheduled destruction of documents should be suspended pending the outcome of an accident investigation.

Following an accident, an employer should be very careful about the creation of any new records relating to the accident. Consider whether a document is needed before creating it. Remember that text messages and emails are "documents" which an inspector may obtain.

Legal advice privilege and litigation privilege might apply to certain documents depending on the contents and purpose of the document. If privilege attaches to a document at all, such privilege as exists may be waived or lost inadvertently. The following tips may be useful in ensuring that a claim to privilege withstands challenge:

  • Mark the document "privileged and confidential";
  • Limit circulation of the document to your lawyer only, if possible;
  • Include a request for legal advice;
  • Do not quote from legal advice in another document.

Prohibition and Improvement Notices

Following an accident the employer may be served with an improvement notice or a prohibition notice. Such notices could have profound implications for the business. An employer wishing to appeal should seek urgent legal advice as there are strict time limits of 14 days and 7 days for appeals of improvement notices and prohibition notices, respectively.

Additional Considerations

Employees – employees who have witnessed an accident may benefit from counselling. Further training of staff may be required to prevent a similar accident occurring.

Lessons learned – a further risk assessment may be needed in light of the accident to prevent a similar accident occurring, and the safety statement may have to be updated.

Insurance – your insurance policy may require you to notify your insurer of circumstances which might give rise to a claim. Check your policy and consult with your insurance broker if in any doubt about your notification obligations.

Public relations – the communications which take place following an accident may have significant implications for the reputation of your business, and consideration should therefore be given to engaging PR consultants.

Conclusion

No-one wants to have to think about an accident happening in their organisation. However, accidents do, unfortunately happen, and having an effective accident protocol in place will equip you to deal with the consequences, should an accident occur.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions