COVID-19 impact on businesses facing regulatory body investigations & inquests

14 Apr 2020

Businesses are continuing to experience huge demands on their resources due to the ongoing impact of the COVID-19 pandemic. From a health and safety, regulatory and inquest perspective, there will inevitably be an impact on businesses facing regulatory body investigations and inquests.

Our experience has highlighted the following key issues:

  • A COVID-19 protocol has been introduced for police interviews under caution which allows for interviews to be postponed, or in the most serious of cases, special arrangements will be implemented to allow the interview to proceed. Those measures include PPE, social distancing and remote attendance by legal representatives and even interviewing officers. There will have to be practical considerations and measures put in place for those suspects who are required to attend an interview under caution but present with COVID-19 related symptoms. In a few cases, a charging decision could be made without an interview, although the opportunity always remains for a suspect to issue a prepared statement under caution.
     
  • No such corresponding protocol has been issued by the Health and Safety Executive (HSE), although in cases where HSE (or other regulators’) inspectors accompany the police at interviews under the joint work related deaths protocol, it is fully anticipated that the COVID-19 police interview protocol would be followed.
     
  • Following on from the initial blanket adjournment of all but the most urgent inquest hearings, we are now seeing coroners tentatively list hearings from September 2020 onwards. These remain provisional dates but allow customers and their legal representatives to work to a timeframe, which in turn is reassuring for their workers who may be required to attend court as witnesses.
     
  • Crown court hearings, including sentencing hearings, are being assessed on a case by case basis. Urgent matters continue to be dealt with, remotely where possible, and our experience shows that some courts are now facilitating less urgent matters in the court list to be conducted remotely.
     
  • For those individuals found guilty or who have pleaded guilty to individual motor or health and safety offences, sentencing hearings remain an unknown, particularly where a custodial sentence remains an option to the sentencing judge. We anticipate judges will take all relevant factors into consideration when sentencing, and practical arrangements will have to be made for defendants if they are handed a custodial sentence. For example, they may have to report to their local police station within a specified time period to enable them to be transferred to prison, although what happens if an individual presents with COVID-19 related symptoms remains to be seen.
     
  • Customers are reporting significant issues relating to statutory inspections, for example under LOLER and PUWER, due to the restriction on movement and, in turn, availability of inspectors as they may have been grounded by their employers or are self isolating. For customers this means it is almost impossible to get independent authorised inspectors out to sites. There has been no clear guidance from the enforcing agencies in relation to this and customers are advised to document decisions made and actions taken.
     
  • Customers are also experiencing increased demand on their resources to ensure continued compliance with health and safety legislation within the organisation, including the introduction of additional training in those sectors seeing an increase in demand and/or recruitment, the completion of new risk assessments and revising existing ones and the provision of PPE where required. The issue of PPE is particularly relevant in the care and medical sector, but may become of increasing relevance in the retail sector.
     
  • The HSE has confirmed that it will, across all sectors continue to investigate work related deaths and the most serious major incidents and dangerous occurrences and will take action to secure compliance with the law. The HSE will conduct as much of its investigation activity remotely and using technology where possible, although will attend sites where necessary, observing social distancing guidelines when present. The HSE has suspended targeted inspection activity of high risk industries that are not part of the major hazard sectors, including construction and manufacturing, and has also now confirmed that it will endeavour to undertake regulatory activities which do not require site visits as normally as possible, for example, thorough reviews and hazardous substances consents.
     
  • This remote approach, combined with the reduction in productivity of businesses and resulting anticipated reduction in work related incidents, may allow the HSE time to complete outstanding investigations and reach charging decisions on historical cases. The majority of our cases have not had charging decisions made where the incident occurred over 12 months previously. A charging decision, whilst not necessarily welcome, will at the very least give customers some finality.
     
  • Guidance has now been issued by the HSE for making a coronavirus related report under RIDDOR. The should only be done when:
    • an unintended incident at work has led to someone’s possible or actual exposure to coronavirus. This must be reported as a dangerous occurrence.
    • a worker has been diagnosed as having COVID-19 and there is reasonable evidence that it was caused by exposure at work. This must be reported as a case of disease.
    • a worker dies as a result of occupational exposure to coronavirus.
       
  • The HSE issued a joint statement with the TUC and the CBI on 3 April 2020, intending to clarify the position in relation to safe working. The joint statement emphasises maintaining social distancing in line with Government advice and the HSE has clearly stated that if it comes to their attention that employers are not complying with the relevant guidance, including enabling social distancing where it is practical to do so, it will consider actions ranging from specific advice to issuing enforcement notices, including prohibition notices. This could be devastating for an organisation already under financial pressure, or even pressure to meet increased demand.

For further details, please contact BLM's head of health & safety, Sally Hancock.

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.

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Sally Hancock

Sally Hancock

Partner,
Manchester


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