The number of costly injury claims against business has risen sharply but human resources can play a role in helping the organisation avoid risk of injury at work and associated fines, says expert laywer, Fiona Gill.
 

In the past few years, the number of high value injury claims contested in the High Court has jumped from 715 in 2005 to 1200 in 2009. The cost of this rise is passed on to businesses in the form of more expensive liability insurance premiums. Should the Health and Safety Executive (HSE) prosecute your organisation following a workplace incident and the Court imposes a fine, this will come straight out of your company’s profits as fines are not insurable. Fines are increasing too, recent sentencing guidelines recommend that the level of fine in a prosecution following a fatal accident should be at least £500,000. Although you may think that the onus for handling these situations lies with your legal team there is a key role for HR to play in helping manage the impact that a major incident has on your business.

Managing the first response
In the unfortunate event that an incident occurs in your workplace, the HSE can prosecute your organisation regardless of whether or not the safety breach causes injury for your employees or others, including members of the public. Establishing some procedures for managing incidents will stand you in good stead should the unthinkable happen.

When a major incident happens, theory and practice can be thrown out of the window. Being prepared with a crisis plan is key. It is important to remember that you or a member of your organisation may not always be the first person at the scene. If there has been an injury it is likely that medical and police personnel will be on site and may have cordoned off the area. The premium is on ensuring that the injured are given the best possible care but from the moment the incident happens, from a business point of view, you may be required to assist the HSE or the Police in providing information to assist their enquiry.  It is important to note that the HSE (or Police) may be investigating with a view to bringing criminal charges against your organisation or even individuals.

Plan, monitor, manage
The best-prepared organisations will have a plan in place in the event of a crisis where key personnel know what is required from them. The crisis plan will be practiced and rolled-out with a project manager in place to monitor and manage your organisation’s response.

Legal advisers should be in place from the outset to manage the investigation, including responding to requests for information by the HSE.  Electronic documents have made the disclosure of information a more onerous process. The HSE can now ask to see data relevant to the incident that has been sent by text and email. Data collection companies can be employed to extract relevant information from computers, telephones and other electronic devices. Informal comments that may seem innocent could be seen in a different light by the HSE so it’s important that communications about the incident are fully thought through. From an HR perspective the types of information you will be required to disclose will centre around evidence that training, risk and compliance have been delivered, adhered to and documented.

Provide and document evidence that training has taken place
In the event that a person is injured in your workplace HR records will be interrogated to find out information such as:

•    did the injured person receive relevant training to enable them to perform their task?
•    was the injured person aware of the levels of risk involved in the job and the protective measures in place?
•    was the injured person required to wear protective clothing to perform the job? 
•    did the injured person register any concerns about performing their role?
•    did their manager record and resolve any issues highlighted in their performance review?

Make use of witness statements
If you don’t have documents in place to demonstrate that relevant training was given, you could consider gathering relevant witnesses to paint a picture of the event. This is a good way to bridge any missing gaps in the training and compliance documentation. Evidence could be gathered from the injured person’s line manager, or from others working in the area that the incident took place.  CCTV evidence is also a useful tool.

Don’t forget about third parties
Where subcontractors are working on your premises, you are potentially liable in the event that their employees are exposed to risk or injured, as a result of your work activity.  Contracts should clearly state roles and responsibilities and training requirements.  All personnel whether subcontracted or your own employees should receive appropriate training.

Accurately documented systems and processes can place you in a more favourable light with the HSE and may provide a defence to criminal charges for safety breaches and civil claims for damages for personal injury. The best advice is to prepare as much as you can for the unexpected.
 

Fiona Gill is a Partner at Davies Arnold Cooper