The impact of Health and Safety Executive investigations on businesses

In 2023 the Health and Safety Executive (“HSE”) prosecuted and secured high-level fines against a range of businesses across different sectors; the construction sector and falls from height once again reaching the top spot in the HSE’s reported 2022/2023 statistics. Interestingly, 96% of these fatal accidents in 2022/2023 happened to male workers.

Sentencing judges up and down the country utilised the Sentencing Council Guidelines; we also saw judges exercise their discretion to go outside the guidelines and apply an uplift for very large companies; those with a turnover of more than £50m.

Transport for London were fined £10m for health and safety breaches following the Croydon tram disaster; Network Rail were fined £6.7m following the Stone Haven derailment, Morrisons PLC were fined £3.5m following the death of an employee who fell down the stairs in one of its stores and Serco were fined £2.25m after the death of a custody officer. All of these fines are not insurable and often have an effect on a company’s bottom line.

As well as companies being prosecuted, we have seen individual directors and officers being prosecuted for health and safety failings which have led to immediate custodial sentences. These health and safety breaches are prosecuted in the criminal courts and have a profound effect upon the individual involved.

It is clear from looking at these recent cases that the HSE as a regulator is not afraid to take cases to trial. We know the HSE spends years investigating serious accidents and workplace fatalities. They can do this without being criticised because there is no limitation period in criminal investigations, unlike in civil proceedings. As these investigations continue, Fees For Intervention are charged as soon as the HSE identifies a material breach of any set of applicable Regulations.

Having represented a variety of businesses in different sectors for many years, I have witnessed firsthand the impact that years of investigations can have on a business, its employees, customers and reputation. It is crucial that when any serious health and safety incident happens, a business has the right level of support and guidance. The key with any type of regulatory investigation is to get ahead and understand the legal issues in play from the start. Having an agreed, well-informed strategy from the outset is crucial.

If your business experiences a fatality or serious incident at work the police will be involved from the outset under a Joint Protocol with the HSE. Understanding police powers, policy and practice is key. Controlling the information flow and receiving specialist legal advice on how to deal with regulator requests for information will help to protect your businesses’ position and give support and confidence to those in your business dealing with the day-to-day investigation.