Lukas Rootman, of commercial law firm Nabarro Nathanson, has some advice on precautions to take and tactics to adopt when dealing with regulators
The hospitality industry receives regular attention from enforcement authorities. But companies all too often find themselves ill-prepared for a visit from the health and safety inspector, through not understanding the regulator's powers, or not being familiar with internal procedures.
All too often this allows the initiative to remain with the investigator, to the detriment of the company. It's important for the company to control the process right from the start, so that if proceedings are instituted your defence is prepared.
The Law Section 20 of the Health & Safety at Work Act 1974 lists the powers of inspectors. The most pertinent include enabling inspectors to enter premises, to carry out examinations and investigation as appropriate, take photographs and measurements, and demand answers. Similar powers are afforded to environmental health officers under Section 32 of the Food Safety Act 1990.
Expert Advice It's essential that everybody in the organisation appreciates the importance of interacting with regulators professionally. Preparation is therefore essential, as a bad first impression is rarely forgotten. Although demonstrating effective risk control is critical to good relations with the regulator, staying aware of do's and don'ts should minimise unwelcome regulatory attention.
Before a visit
- Know all relevant policies and procedures.
- Know the current systems operating on site.
- Know the risk-control systems operating in your area.
- Know who's responsible for each area and activity.
- Know who needs to be informed or to take charge.
- Don't assume it's someone else's job.
- Don't assume the risks are controlled without evidence.
During a visit
- Request to see regulators' identification, and sign them in and out on every occasion.
- Agree purpose of a visit before it begins.
- Don't allow any inspections in any area unless the risks are controlled.
- Don't allow regulators to be left unaccompanied.
During an investigation following an incident
- Ask the purpose of the investigation.
- Seek legal help early.
- Answer questions factually and concisely.
- Remember that what you say may form part of the evidence against the company and even individuals.
- Ask for a receipt for anything taken off site.
- Don't obstruct or mislead an inspection.
- Try to persuade officials to take copies of original documents.
- Don't volunteer information.
- Don't create responses which are based on assumptions - they could incriminate the company.
- Prepare post-incident reports in draft for your legal adviser to approve before release.
- Don't release legally privileged documents without taking legal advice.
Before or during an interview
- Ask what type of interview is being requested.
- Ask to be accompanied by a named colleague if under Section 20.
- Ask for legal advice.
- Don't accept a PACE (Police and Criminal Evidence Act 1984) interview without taking legal advice.
After a visit
- Write a summary of the visit.
- Put in writing to the regulator your understandings of the visit.
- Report on the outcome of visit to the relevant line manager(s).
- Recommend changes to company policies and procedures.
- Don't forget to act on actions agreed, and don't assume someone else will act.
Check list In addition to your health and safety policies and contingency plans, you should ensure that:
- All directors and line management are trained and briefed in dealing with regulators.
- You have access to professional health and safety advice, and legal advice.
- Your commitments are put into effect.
Beware! Failing to deal with regulators effectively may result in enforcement action being taken under circumstances where it may have been avoided by agreeing an alternative course of action, or by demonstrating that systems are in place to avoid breaching relevant legislation or that the defect has been remedied.
Contacts Lukas Rootman
0114 279 4022