Health and Safety, Accidents at Work and Employer's LiabilityWhen a workplace incident occurs, a decision needs to be taken quickly whether to call you or your business lawyers. Whilst instructing solicitors necessarily incurs some cost, bringing your legal team in early can in fact reduce the overall cost of the incident to the business. With over 20 years experience of advising and representing clients in your position, we know how regulatory authorities seek to enforce the many regulatory obligations which you hold. Our knowledge and experience allows us to proactively manage the aftermath of a workplace incident, which can effect whether any prosecution will follow, the amount of any sentence imposed by the Courts as well as the amount of any personal injury claim which may follow the incident. The following will help you to identify when you should seek expert external advice following a workplace incident.
CostsWhilst your principle concern following an accident or incident will be protecting the business, many are put off by the spectre of high legal bills and the uncertainty of costs. In making these decisions we would urge you to consider the immense benefit of professional expert assistance against the potential costs. We understand that commercial considerations are paramount and will work with you to provide realistic cost estimates, revise those estimates on a frequent basis, agree a payment structure that suits you and ensure that work is only done at the appropriate level of fee earner, whilst you enjoy a partner led service. Where you have the benefit of insurance cover, we have experience of working well with insurers on our clients behalf. Remember – you can choose any lawyer you like, you do not and generally should not choose the insurance company panel lawyer who has probably bought the case through a claims management (ambulance chasers) company. We are not tied to insurers as a source of our work and will not be influenced by any considerations other than the best interests of you and your business.
Protecting your BusinessAs a director or officer of a company, you owe a duty to the shareholders to act in the best interests of the company. The consequences of failing to properly deal with a serious accident or workplace death can be catastrophic. In the event of any other incidence of a business critical failure you would not hesitate to seek expert advice and assistance. The Health, Safety & Environment team at Edward Hayes are experts in guiding companies and their management through this process.
All investigations into health & safety or environmental breaches are conducted in accordance with the criminal law. In the event of conviction the penalties available are severe (unlimited fines, imprisonment for individuals, publicity orders). Evidence must be gathered in accordance with the rules of evidence and mistakes in the process may be fatal to any prosecution.
As solicitors, we are experts in the law and powers available to the regulatory authorities such as the Health and Safety Executive (HSE,) Local Authorities (LAs), the Police and the Environment Agency (EA). We can remove the stress involved in dealing with such regulators by facilitating communications between your business and the regulators. This enables your business to achieve that delicate balance between co-operation with the regulator and protection of the business. A frequent complaint is that inspectors fail to disclose all the information necessary for the business to base important decisions on: we are experts in obtaining such information, negotiating appropriate periods of time in which to consider information and ensuring that the all decisions are based on the best information available. All regulators are required to act in accordance with their own codes of conduct- our knowledge of those codes allows us to challenge decisions or steps taken ensuring that our clients’ goals are achieved.
Protecting yourselfAs an employee, senior manager or director, you have responsibilities to ensure your own safety at work, as well as others. If you are involved in a workplace incident, whether you were working with the injured party or were their supervisor or manager, it is important to ensure that your own interests, as well as those of the business, are protected. Businesses facing investigation by regulatory authorities may have the resources and support in place to be able to obtain all the information needed to protect itself. You need to ensure that you obtain the support and guidance you need to be able to appropriately manage the investigation into your role.
As solicitors, we are experts in the law and powers available to the regulatory authorities such as the Food Standards Agency, Health and Safety Executive (HSE), Local Authorities (LAs), the Police and the Environment Agency (EA). We are able to reduce the anxiety of dealing with such regulators by facilitating communications between you and the regulators. This enables you to achieve that delicate balance between co-operation with the regulator and your own protection. A frequent complaint is that inspectors fail to disclose all the information necessary for you to base important decisions on we are experts in obtaining such information, negotiating appropriate periods of time in which to consider information and ensuring that the all decisions are based on the best information available. All regulators are required to act in accordance with their own codes of conduct, our knowledge of those codes allows us to challenge decisions or steps taken ensuring that our clients’ goals are achieved from the day of the incident through to any final court hearing.
Accident InvestigationIn the event of an accident most organisations will undertake a review of how the accident happened. Indeed the HSE and Local Authorities expect such investigations to take place. Those investigations are often in a written form and they are often requested by the investigating party. In the event of a refusal to provide a copy, the HSE and Local Authority have the power to compel its production. Our team includes former police officers and experts in most types of incident from relatively minor to major catastrophe!
In certain circumstances the solicitor client relationship affords protection from disclosure all documents produced as a result of that relationship - Legal Professional Privilege. Engaging solicitors where litigation is likely offers you protection from disclosing damaging information.
In addition, our complete incident management service ensures that you and your business obtain the best available evidence obtained when information is still fresh in everyone’s mind. Early identification of the issues in turns allows us agree with you what your aims are in relation to the investigation so that your interests can be progressed from the earliest possible opportunity.
Insurance CoverUnlike many other Business Protection and Regulatory Health and Safety lawyers, we do not rely upon referrals of work from insurance companies or ambulance chasing claims management companies. If you have insurance which covers Health and Safety investigations, you do not have to use the insurers preferred lawyers - you have a choice. With so much at stake for your financial position and your reputation, you must have confidence that your legal team is working in your best interests.
You are able to instruct us and your insurer should respect your wishes. This ability to choose is not publicised by the insurance companies, claims management companies or their panel firms.
Interviews under CautionThe decision to attend an interview with a regulator under caution is a complex issue. If a regulator has invited you or a representative of your business to attend an interview under caution, it means that they suspect that a criminal offence has been committed and they are seeking evidence (against you). You and the business need to understand what your legal rights are when attending as well as what to say, if anything. The answers provided during an interview will influence what enforcement action will be taken and will be used in evidence at any court hearing which may follow. With expert help, you may use the interview process as an opportunity to present you or your business in the best possible manner.
Our specialist team will support you though the interview under caution process to achieve the best practical outcome.
Decision to ProsecuteIn many instances, where we are involved in a case at an early stage we are able to persuade the investigators away from court action. Identification of evidential and public interest issues in conjunction with pro-active advice to avoid the repetition of an incident and the implementation of safer practices is vital.
Do you have to use your Insurer's choice of Solicitor?Very often we find that clients who wish to instruct us have an insurer who objects – commonly because they want the work to be done by a solicitor on their panel, who is usually a cheaper, lower grade of fee earner and often somebody acting under the banner of a ‘Solicitor’ but not in fact qualified.
An EU Council Directive implemented by the UK in the Insurance Companies (Legal Expenses Insurance) Regulations 1990 states, in summary, that if you have legal insurance you can choose your own lawyer in any inquiry or proceedings. The regulations do not apply to insurance policies providing civil liability cover (i.e. someone gets injured in your home), travel insurance and car insurance, but if you have legal expenses cover on your household policy for instance (covering things like boundary disputes) you can choose your own solicitor once proceedings are begun.
Although the Insurance Company can insist on their own solicitor until proceedings are issued, they are unlikely to do so if you quote the regulations to them and explain the Court of Appeal and the Financial Ombudsman Service have both stated that in complex cases they would expect the insured to be able to use their own solicitor from the start.
Finally, this right should be expressly and clearly set out in your policy.
Any questions – please feel free to come to make an appointment for a free consultation with a copy of your policy.