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.
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.
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.
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.
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.
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.