How do you prepare for when the worst happens and a worker is killed on your construction site? Andrew Katzen and Claire Rose, regulatory and criminal law specialists at Hickman and Rose solicitors, discuss dealing with the aftermath of a death on site.
Andrew Katzen (left), and Claire Wallace
Despite great improvements across the sector, the construction industry remains one of the most hazardous industries to work in, with 31 fatalities recorded in 2016-2017.
Already this year we have seen tragic headlines around the death of an individual at the Canary Wharf site and a firm being fined £100,000 after one of its construction workers died on site.
Furthermore, the recent adverse weather conditions have meant that outdoor sites have been increasingly dangerous.
Firms need to be more vigilant than ever to ensure workers are adequately protected and the company has a plan in place in case something does go wrong.
The legal implications are, of course, serious. Of the 25 corporate manslaughter prosecutions conducted so far, 10 involved the construction industry, according to government statistics.
A fatality is an uncharted area for many and handling the various investigations by the police, Health and Safety Executive (HSE) and the coroner can present new and distinct challenges. While each case is different and there is no exact blueprint to overcome these issues, there are a few points to keep in mind during an investigation.
Plan for a crisis
A fatal incident crisis plan will help manage an emergency and avoid confusion and panic at the scene. A good crisis plan allocates roles and ensures that everybody involved knows exactly what is required of them. It needs to be short and simple but relevant to the organisation.
The plan might designate:
- an incident controller – the senior leader who will make important decisions about the firm’s response and liaise with police, HSE, insurers, and lawyers;
- a site controller who will make the scene of the incident safe, preserve evidence and support witnesses;
- an emergency services liaison who will collect information and handle requests for information; and/or
- a PR or HR professional, who will control all internal and external communications and assist with the media.
At the scene
This is the start of an investigation by the authorities. Questions will be asked of those at the scene by the ambulance crew, paramedics, police and HSE officers. Employees may well be in shock and it is not unusual for people to make mistakes or give differing accounts which could later cause them and the organisation significant problems.
Here, a site controller could legitimately intervene by:
- checking that those whom the police wish to speak to are in a fit state to give a coherent account;
- reminding employees of the importance of explaining only what they themselves witnessed; and/or
- ensuring that if the police take an account, this should be reviewed and only signed if correct.
Interviews are a critical part of any investigation and how the organisation approaches them can make a significant difference to the outcome.
Employees interviewed as suspects will need their own legal advice separate from the organisation’s own lawyers. To avoid unnecessary falling-outs, it is often sensible for the employer to support the individual by finding him or her a specialist independent lawyer. Disgruntled employees could cause the company problems later on in the investigation.
If the business is itself under suspicion, the issue arises as to who should attend an interview under caution on behalf of the company. It is essential to ensure that the person who represents the company in interview is not themselves a suspect or a witness and there is no conflict of interest between their own position and that of the firm.
Many responsible organisations will wish to launch an internal investigation to establish what happened, learn lessons to avoid any recurrence and take remedial action. However, if an investigation by the police or HSE is underway, then the company should inform the authority before questioning potential witnesses. The police and HSE will normally want to do so first and it is crucial that an internal investigation does not result in accusations of a cover up.
Companies should give great consideration as to who conducts these internal reviews, their terms of reference and how they are undertaken. Poorly drafted notes and statements can incriminate witnesses, managers and employees without anyone realising, let alone intending it.
Until recently, lawyers might well have said that if they investigated on behalf of the company, the results would not have to be disclosed to the police, HSE or anybody else due to legal professional privilege (the duty of confidentiality owed by the lawyer to the client). However, due to several recent cases, such as Serious Fraud Office (SFO) v Eurasian Natural Resources Corporation Ltd  EWHC 1017 (QB) this is now uncertain.
The consequences of this mean it is now harder to maintain legal privilege over meeting notes with employees and possibly the report itself. While this does not necessarily mean that no internal review should occur, it is sensible to begin with the approach that the product may have to be handed over to the authorities later down the line.
Most fatal workplace accidents will lead to a coroner’s inquest, which will be focused on discovering how the deceased died, rather than on attributing blame. It is worth noting that evidence given in an inquest has the potential to trigger criminal proceedings. Indeed, coroners often write highly critical reports to prevent future deaths and even when there has been a decision not to prosecute, the inquest’s verdict may lead to a review of that decision.
Partner Andrew Katzen and associate Claire Wallace specialise in regulatory and criminal law at Hickman and Rose solicitors.