Every good health and safety manager stays alert for the arrival of day when their training is tested by a major incident and the investigatory process is deployed
by Paul Verrico
7 February 2008
The truth is out there
Every employer, regardless of size, faces the prospect of having to carry out different kinds of investigations. Sometimes these relate to employment issues and may follow an accusation of misconduct; others relate to investigations carried out in the aftermath of a health and safety incident.
The following pointers consider health and safety incidents in the context of you being asked to perform an investigation. Facilities managers are prime candidates for selection in heading up an internal investigation into a serious incident or fatality. It is therefore fair to say that the principles distilled below may, at some point in the future, be of real use to you.
1 Reporting
During September and October, Eversheds ran a number of courses to train managers on how to conduct effective investigations. Delegates’ fears revolved around writing the actual report and interviewing witnesses. A good (major) accident report should be compiled on the instruction of lawyers so that it has legal professional privilege attached. It should be completed by somebody who does not have a personal stake in the outcome. Both the immediate causes and the wider underlying factors that led to the incident are to be examined. Witness statements should be referred to, having been taken as soon as possible after the incident, thus avoiding memory fade. The report should be as factual as possible, avoiding unsubstantiated opinion and make suggestions on actions to improve – if something is obviously dangerous, early conclusions should be communicated to those affected immediately. It should identify any subcontractors, equipment suppliers or other third parties involved in the incident, with contact details where relevant. Finally, it should have a defined circulation list.
2 Witness interviews
When interviewing witnesses, many investigators fall into the trap of using closed questions to try and get a witness to agree with the conclusions the investigator has already formed. This is the wrong approach. A good investigator asks open ended questions.
Think about putting Kipling’s Six Faithful Serving Men to work. You may remember the poem:–
I keep six honest serving men,
They taught me all I knew,
Their names are what and why
And when and how and where and who
Asking questions that start with one of those words should hopefully give you sufficient scope to establish what happened. As you ask the questions, make a mental note to assess the credibility of any statements made by the witness. You may benefit by asking a note taker to sit in so that you can keep eye contact with the person being interviewed.
3 Background info
You also need to consider what background information is useful. Riddor reports, health and safety committee minutes, company policies, inspection reports and policies will all be relevant in writing a report. Try and collate these in a manageable format, indexing documents where appropriate. If you later give an interview on behalf of the company to the regulator, you will find a clearly indexed set of documents invaluable.
4 Timing
The best time to investigate an incident is, of course, immediately. Many of our clients are amazed at how quickly the momentum of an investigation dissipates as the second and third week after a major incident elapse. Memories fade, and new management challenges demand much of your time.
Remember this as you set out on your investigation – remind your colleagues that you are unavailable for a few days, put an out of office on your computer and devote your time to the investigation while the incident is fresh in people’s minds.
5 Instruction
Of course, these are just a few practical tips on managing the investigation process. Accident investigation training courses are available for those who wish to take their study of this area further. A good course will look at the powers of the investigators, practical issues when preparing an internal investigation, witness interviews (the thin line between proofing and interference), dealing with whistleblowers and making recommendations at the end of an investigation report.
Every health and safety manager fears the day when all of their training will be tested following a major incident (Eversheds handles around 100 accident investigations every year – everything from near misses to incidents involving multiple fatalities). For many managers, that day will never occur. If it does, stay cool and collected and bear the above in mind as you begin the investigatory process.
Paul Verrico is a regulatory solicitor at Eversheds LLP
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