Kizzy Augustin, Partner, Mishcon de Reya
Welcome to the latest in our Mishcon Disputes Flash Webinars, what to do in the event of a fatality or a serious incident. I am Kizzy Augustin, Partner in White Collar Crime and Investigations and Head of our Health and Safety Practice at Mishcon de Reya. Before I introduce my two esteemed and expert guests, I want first of all to, to give you a practical example. Picture the scene, a groundworks subcontractor company involved in a new, exciting construction project converting a basement into a luxury cinema room and extra living space, somewhere prime in central London. High end project with high expectations in terms of costs but also quality. The company, run by two brothers, one of which is extremely experienced in the construction industry and is a construction director site manager for the project. In this case, a young worker, one of about fifteen agency workers, was unfortunately crushed to death while working on a basement excavation. The excavations were said to be insufficiently supported and collapsed, crushing and trapping the worker. The Emergency Services were called but he was pronounced dead at the scene. Now the company itself went into liquidation during a four year criminal health and safety investigation and as a result an individual director was prosecuted for manslaughter and there was also a health and safety consultant who was biased on the project who did things like draft risk assessments, method statements and was said to have failed to take note of excavation risks or adapt to changes in the project. That consultant was also prosecuted for health and safety failings. Now, whilst there were other people who were responsible on the project, like the residential owner, main contractor, structural engineers, surveyors, site foreman, it was the director and the health and safety consultant that were held responsible. Both were prosecuted, full blown investigation and a trial ensued. Now, let me first turn to Crystal, Crystal Danbury with your expertise, you’ve been in the game twenty years as a Health and Safety expert, worked across a whole host of sectors. I’ve just given an example of a construction project that unfortunately went wrong and went through a prosecution. Where do you think businesses need to start in terms of dealing with something like this, a situation like this, where should we start?
Crystal Danbury, Industry Health & Safety Risk Consultant
Well I think the first thing that we have to address is that emergency preparedness piece. Actually, it’s getting the right and competent people on board, you’ve already addressed things like consultants and directors of your business so it’s making sure that whoever you engage with has credibility and competence but you really, really do have to be ready. The first thing that springs to my mind is that emergency preparedness piece. Accidents will happen, major events like this do not have to happen but when or if they do, you need to be really ready and two things need to happen as a result. One of them is management of the event in the moment, the first 24 to 48 hours are crucial but also care is required and typically, the people that respond to these things will have one of two bents, you will be care driven or you will be compliance driven and to have really good plans in place to make sure that you cover both of those bases. Regulators are informed, insurers are informed, stakeholders are brought into play but obviously you are taking of those affected by the event, completely crucial.
Kizzy Augustin, Partner, Mishcon de Reya
And you’ve seen that across sectors, I mean you’ve worked in media, rail, logistics. Is it similar across sectors or do you find that some sectors get it more than others?
Crystal Danbury, Industry Health & Safety Risk Consultant
It’s the same, I think the thing that changes between sectors is how seriously they tend to take catastrophe planning. So I think rail is an example, we are used to seeing the devastation if a rail crash happens because there’s usually multiple or widespread fatality, that industries like that will really lean into emergency preparedness and take that seriously whereas really interesting scenarios like small construction sites and the basement, people tend to forget that that requires the exact same response. A negative event has happened, life or lives have been lost, the same actions are required wholescale.
Kizzy Augustin, Partner, Mishcon de Reya
Yeah, and what I want, I mean I want people on this call to get out of today really is to see some of the practical tips that the three of us can, can maybe share in terms of, of dealing with this type of incident but one of the things I’ve certainly observed is how to deal with the regulator. Regulators are really wanting to see how you anticipate risk. This isn’t about just response but it is about how have you anticipated risk in relation to your sector? So for example, in the construction example I just used, the regulators, it was the police and the HSE, what they wanted to see was, what were your policies in place, how did you engage with staff? You had a huge amount of non-English speaking workers, of which the victim in this case was one of them so it was how you managed risk and unfortunately, it does start and stop with accountability by management, how are you dealing with this at board level, how do you draft your communications, how do you engage with employees, top down but also how do you encourage information going bottom up? I think one of the tips maybe I could give at this point in terms of dealing with the Emergency Services and those are the ones that come on the scene first off, is having a core investigation group as keeping information that goes out quite limited, limited the way in which you have that external messaging going out but being proactive and demonstrating a preventative measure externally. Alex, I mean, Alex, you’re, you’re a Partner in our Construction Group, again you deal with construction disputes. What have you seen from the construction world of kind of practical things that can overlap a criminal investigation?
Alexandra Clough, Partner, Mishcon de Reya
Yeah, well I mean you’ll appreciate that health and safety is really, you know, really important to the construction industry and by the, by the major contractors is taken incredibly seriously. Construction has significantly more fatalities annually than any other sector and I mean a lot of that is, you know, it’s driven by the number of people working within the construction sector. There’s a huge area that contractors and owners focus on and obviously always you know prevention is better than cure and that’s the, you know that, that’s the mantra and having, you know, everything in place to minimise the risks is absolutely, is absolutely crucial and that goes all the way through from you know the CDM regulations to requirements in the contract, to what’s happening day-to-day on site. I mean if, if an incident does happen then obviously you’ve got your, your obligations to inform the HSC, if there’s a fatality you have to inform the police. On construction sites, you’re really looking at you know, securing the site, turning of machinery, ensuring that, that there’s no, you know, further incidents that you, you know, that you limit the impact as far as you can and then in the first 24 to 48 hours, as well as, you know, dealing with the regulator, it’s important to preserve evidence and keep records…
Kizzy Augustin, Partner, Mishcon de Reya
Yeah, agreed, agreed.
Alexandra Clough, Partner, Mishcon de Reya
…as much as you can of what’s happened.
Kizzy Augustin, Partner, Mishcon de Reya
I mean, there’s a lot to be done and I think the biggest impact, both from a professional perspective and personal perspective, is that first 24 to 48 hours so as you said, Alex, making that report to the HSC or another regulator, if it’s another regulator involved, I think really important is to understand what your rights and entitlements are as an organisation but also the individuals within it. So, do you attend interviews? Should you attend interviews? If you don’t, could you give a written response for example? From a construction perspective in particular, it’s that sharing of information between other people involved in the supply chain, that seems to be quite a sensitive issue because sometimes you’ll get some who want to share information, others don’t and it’s how do you balance up that criminal obligation versus the contractual issues that, that, that follow. I mean, have you seen quite a lot of competing pressures, Alex, in respect of dealing with the contractual issues versus having to comply with some regulatory or criminal obligations?
Alexandra Clough, Partner, Mishcon de Reya
I don’t, I mean, honestly, not really. I think that the, you know, that the regulatory and the criminal you know investigation, that always has to come first and the contractual repercussions then follow further down the line. You, you know, you can’t, you need to comply with those, you know, regulations first and foremost and that you know the criminal side of things and then, you know, claims are, you know, in this kind of disaster scenario, any claims really are secondary and all you can do immediately is like I said, you know keep your records and preserve the evidence and then you can turn to that once the dust has settled.
Kizzy Augustin, Partner, Mishcon de Reya
And Alex, you bring up a really, really good point about claims and so on, so having the right insurance in place for, to cover you not only for civil claims but also criminal investigations and prosecutions, there’s a real distinction between the two. But also thinking about do we need help with this civil claim? We can go to our insurers and get that help there, no doubt they’ll provide you with, with lawyers but also understanding that the criminal side of things is very different.
Crystal Danbury, Industry Health & Safety Risk Consultant
Yes.
Kizzy Augustin, Partner, Mishcon de Reya
And the criminal regulatory investigation is criminal, it can result in pretty dire consequences for companies, big fines or even, worst case scenario and I promise not to say it too often but prison for, for individuals, so really you do need specialist regulatory, criminal regulatory lawyers who can help you with that. We, we touched on the investigation… sorry, Crystal…
Crystal Danbury, Industry Health & Safety Risk Consultant
But actually, I was literally just about to go there with a couple of things that both you and Alex have said and what it’s really bringing home to me is the importance of your internal investigation, so sometimes in these moments when you have regulators, police, enforcers, crawling all over your scene, there could be a feeling of stepping right back, allowing that complete control but actually, having really great representation that you can tell you your rights to go in, the preservation of that scene, your own evidence collection, internal investigation is absolutely essential and actually, having great representation that can tell you about how to wrap that in privilege and some people can look at that in a, it feels a bit, you know, why would that be the focus? There is absolutely the most amount of, there is a huge amount of benefit in being able to have what I would call your dirty discovery conversations…
Kizzy Augustin, Partner, Mishcon de Reya
I really like that.
Crystal Danbury, Industry Health & Safety Risk Consultant
…what really happened, right, dirty discovery, but you need to have it in a safe space because a small amount of information can be very dangerous in the wrong hands, what you’re building is context to your event and you can’t do that in open forum, so internal investigation, absolutely vital to prevent re-occurrence, as Alex said but actually, completely essential for getting to the routes of what really happened so that you can answer what may come from your regulator or the police and you can also really feed into any future possible prosecutions and to say this is what we discovered, this was the context and this is what we have done since to prevent re-occurrence, so all of that really, really vital from a care perspective but also in managing an event.
Kizzy Augustin, Partner, Mishcon de Reya
Absolutely. I tell you what, I’m using that phrase, ‘dirty discovery’, I’ve never said it in that way, I say it but not in that way.
Crystal Danbury, Industry Health & Safety Risk Consultant
And it’s really important.
Kizzy Augustin, Partner, Mishcon de Reya
Well it’s a hook, it’s a hook and actually, I speak to a lot of clients about the benefit of using legal privilege so you know, going to get advice from your lawyers, them instructing the business to go and go away and do an investigation in anticipation of, of some form of legal proceedings for example, but the dominant purpose of creating an investigation or an investigation report is for your lawyers, give them the information so they can advise you and the benefit of that is you can secure you know confidentiality and privilege over your reports, your emails, your, and so on but it means that you do not have to disclose this to third parties, including the police, including the regulators, including claimants for example, so it’s really important to get that right first off but some people do, as you say, see it as maybe you’ll be hiding information. No, it’s just slowing down the disclosure process and making sure you can battle it internally first, warts and all, before you decide how you share, share that information. In, in this scenario we had a consultant and I think using privilege was really helpful because it helped us understand what was going on under the surface and help us advise the director, who was up for manslaughter but we also had this health and safety consultant, who unfortunately was also prosecuted for health and safety breaches in this case. What are we thinking about the shift towards individual accountability, particularly for consultants who are finding themselves now at the forefront of investigation as opposed to on the periphery helping an organisation. Er, Crystal.
Crystal Danbury, Industry Health & Safety Risk Consultant
In terms of individual accountability, I think it’s absolutely right and I think so, I think this year is my 21st year working in safety and the amount of people in the, particularly in my early parts of my career when this wasn’t the case when individual accountability wasn’t really there, that were just like, you know I’m probably just going to give it a go, going to give consultant ‘a go’, touching industries that they’ve never touched before, actually I think what this does is, that stops the very flippant nature that used to exist, I’m definitely not saying it exists now, but it used to exist in terms of do you have what I would call the ESCAPE acronym for competence, skills, knowledge, aptitude training and experience. Do I have all of those for the sector that I am touching? And I think it’s right to push the accountability of the individual to say if somebody is reaching out to you, you are the competent party, you are the one that says “I’m not skilled to step into this area.” So I completely support it.
Kizzy Augustin, Partner, Mishcon de Reya
And it’s this, this idea of what I’m getting theme-wise is, you’ve got internal investigations, external investigations, normally running at the same time, probably of course could also have, as well as a construction dispute between maybe client and contractor, you might also have an employment investigation going on as well because there may have been some sort of negligence or misconduct undertaken so there’s a disciplinary issue, so you’ve got all of that happening, you know, how, and also if there’s been a fatality, you might well have an inquest in the offing as well running alongside the prosecution so, there’s so many things that could be happening at the one time and I think it is really, really important to take stock, I think you’d mentioned it, Crystal, take stock and, and deal with things on a much more manageable basis and that probably does start and stop with management, management taking accountability. I think where we are at the moment in the UK, is we have regulators wanting to see management lead, we’ve got specific guidance that talks leading health and safety from the top, they want to see that these things are discussed at board level, in minutes of meetings and so on and, and, you know there is some accountability at all levels. I think where we are seeing a slight difference and I bring it back to the construction example, and this might actually be for Alex, we’re seeing a real shift in terms of not only personal accountability and responsibility but also this idea about culture of organisations and behavioural, you know the behavioural approach to managing safety. I’m thinking of things like the Building Safety Act but also we’ve, we’ve had it as part of our guidance. The Building Safety Act talks about culture and competence, that being a factor when it comes to actively proactively managing safety. Have you come across much more conversation now about culture and behaviour when it comes to the construction sector, Alex?
Alexandra Clough, Partner, Mishcon de Reya
Yeah, I mean and that’s been, it’s not a recent thing, that’s been, I’ve seen it you know probably over the last fifteen years with where health and safety fifteen years ago really came to the fore and you would see, you know, slogans on you know well known construction companies, they have particular slogans on their hard hats and particular slogans on, you know on their high viz jackets about being safe, about getting home safe and about you know, and it really being boiled down into a number of golden rules or you know for each company, you know they’ll be different but along the same themes of you know we take care of each other and you know, nothing is so important that it can’t be done safely, and this idea of not, you know, of it, of it not being an inevitability that there will be fatalities, you know, it, it being a real mind shift and that, you know, and that’s, you know progressed I think in the last fifteen years and now, you know, and now there’s more you know focus towards wellbeing is being kind of in the health and safety and that, that’s kind of, that’s moved on but I think what we’ve seen in the, the fatalities is a plateau and it’s hard to tell actually where that’s going because there was Covid and you know, you, the, the impact of that is quite hard to measure and it will be interesting over the next couple of years whether we have now, you know, after a huge decrease in workplace fatalities, whether now we, we’ve plateaued and whether it does now need another kind of step on, you know, there needs to be something else done and you know and construction has the highest number of fatalities but actually the industry with the highest incidents is agriculture and you know incidents per number of workers is, is in that sector and it will be interesting to see whether you know there can be another step change like.
Kizzy Augustin, Partner, Mishcon de Reya
Construction lead it, I think, to be fair, I think the construction world kind of lead in terms of initiatives and the seriousness with which they take the management of safety, I think they do such a good job in terms of pushing that message, I think other sectors, like you say agriculture who don’t necessarily get so much airtime could learn a lot from the approach in particular, but you mentioned something about wellbeing and kind of that individual impact, personal impact. There is something around the way in which employees and others who might be affected by a, a serious incident or a fatality are dealt with so it’s managing the personal impact. How do we deliver messages to the rest of the staff, for example in the, in the construction example I just used, it’s how the rest of the staff were treated immediately after the incident. Were their wellbeing looked after because they are also affected? The family of the director and the consultant having to go through a very public investigation and prosecution. There’s all those thinking, I mean those are the things certainly that needs to be considered as part of your incident response protocol.
Crystal Danbury, Industry Health & Safety Risk Consultant
Yes, definitely.
Kizzy Augustin, Partner, Mishcon de Reya
I think moving, moving on from that, kind of those are the immediate things to think about. Impact on, on others within the organisation, accountability, instructing the right experts, consultants, lawyers to help you with your internal and external investigation. Longer term, we might well be dealing with, as I said, inquests when there’s a prosecution, dealing with the prosecution itself and how you deal with giving of evidence for example, I mean yes I’ve been in Court lots of times but even I have been nervous at giving evidence as a witness, I’ve done it twice, so it’s preparing you for that if you do have to get involved in a prosecution. It’s dealing with sentencing as I’ve said, huge fines and a lot of cases we’re dealing with, million pound fines, where there hasn’t even, even though we’re not, we’re dealing with a fatality and serious incident here, you might be dealing with a situation where there isn’t a fatality and you’ve just exposed potentially someone to risk, you can still go through a very active prosecution, you can still deal with all the consequences of that and dealing with the injured parties, dealing with claims and so on. The one thing I just want to touch on before I maybe sum up and give a, the idea of where, where we’re at in terms of that example, is reputational risk because yes, we can cater for paying out a civil claim or even huge fines. How do we deal with reputational risk management, Crystal?
Crystal Danbury, Industry Health & Safety Risk Consultant
In the…?
Kizzy Augustin, Partner, Mishcon de Reya
Million dollar question.
Crystal Danbury, Industry Health & Safety Risk Consultant
Million dollar question. I think it goes right, right back to I think that you have to start as you mean to go on. So what you’re doing in the first 24 and 48 hours in terms of those two things I mentioned, so management of the event and the care as a result of the event, you’ve already touched on the care piece in terms of witnesses, the injured parties etc and but not only, I mean from my perspective, I’m going to be biased right, I’ve done this forever and will never do anything else because I love people and I think people have a right to be taken care of, so I’m naturally going to say there is benefit, moral benefits and we should be taking care of those people but the reverse if you turn that whole question on its head, what do you think that really looks like if you take, if you do not deal with the care element of this event? So that’s conversations in the pub, that’s conversations across stakeholders, that’s conversations in your peer groups, in your industry. You don’t want to, I mean I would hope nobody would be approaching this coldly but let’s just say they do, it’s not somewhere that you want to be and not just from a reputational or a brand perspective but actually it feeds into Court, it feeds into where the judge lands or a jury lands or even how it…
Kizzy Augustin, Partner, Mishcon de Reya
Or your mitigation.
Crystal Danbury, Industry Health & Safety Risk Consultant
Or the mitigation, or the even the inquest and how that feels, how you took care of the person on the day because lots of that investigation is going to be how you took care of people leading up to that point, what led to that event but everything after you must understand also has complete ability to enrich your reputation in terms of the you did this very morally, you did this well…
Kizzy Augustin, Partner, Mishcon de Reya
And intentionally, intentionally.
Crystal Danbury, Industry Health & Safety Risk Consultant
Absolutely, and you accepted your ownership and your part to play or you did the opposite and that plays out, as mentioned before, negatively.
Kizzy Augustin, Partner, Mishcon de Reya
Well, let me maybe tie some of those themes together and give people on this call an idea of how this concluded. So, this prosecution took place, this was a case that I did, prosecution took place, both parties found guilty, took a bit longer for the director but on sentencing, the judge said that the consultant in particular, his defence was ludicrous, he really should have done more to secure the safety of the people he was advising and showed a real disregard to health and safety so, after the trial the health and safety consultant was actually found guilty of exposing others to health and safety risks and imprisoned immediately for nine months, that was shockwaves through, through the consultants, consultancy world, but also the director who was again, sentenced four years to the day after the incident took place, found guilty of manslaughter and was sentenced to three years, three months in prison. No one ever wants to go through that and in fact this was probably one of the first cases I’d done that made me really rethink my decision to practice law because I thought it was an absolute injustice but the reality is, this sort of stuff happens. Directors, who never, ever think they’re going to be in this situation, could find themselves being held responsible and accountable for something that goes wrong within the business so, director went to prison and came back out, he’s now back working in construction as a, as a labourer but for me, some of the real key messages were him understanding what his role was within the business, making sure that he engaged with staff a bit more than he did, the impact of this case on his family, his colleagues and his ability to run his business because that went, went bust and also engaging with the regulator and how you did that. These were some of the lessons that we took from the example. So I think what hopefully we’ve got from the three, what you’ve got from the three of us is, be accountable, be intentional, think about not just top level management but also how you manage your business from your employees to your third party suppliers, to the rest of the supply chain, if I can put it in the most general terms but also those who have been impacted by a serious incident or fatality. And prepare, prepare, prepare, right, it is about being preventative, it is about not waiting for these incidents to happen or waiting for the regulators to knock on the door but get experts in, get practical experts in, get lawyers in, you know people who can help you be as prepared as you possibly can for a dire consequence from a serious incident that I’ve described.
Crystal Danbury, Industry Health & Safety Risk Consultant
Well said.
Kizzy Augustin, Partner, Mishcon de Reya
Okay. I think we may have time for one question, I’m kind of looking to see if we can answer one question, am I getting nods from, I’m, I’m not getting anything so I’m just going to take one question, I think, before we disappear. We did have a question about legal privilege, that could take all day so I’m quite happy I think, maybe offline, to discuss with you what that might mean, I think it’s Philip, what that mean for your business but essentially it’s, it’s securing lawyers to help you with your internal investigation so it can be protected and not have to be automatically disclosable to third parties but again, I can go through that in lots of detail. I think I just wanted to answer a question. How can manager’s balance, from Emily, how can managers balance having a preparedness plan which is sufficiently detailed and not being able to anticipate what the fatal event will involve? So, how do we think about a preparedness plan, maybe a stock preparedness plan and how do we try and anticipate what risks we need to include in our overall preparedness plan? Maybe from both of you.
Crystal Danbury, Industry Health & Safety Risk Consultant
I think my first thing will be is remember preparedness is preparedness for a negative event, not a particular scenario. The minute you go down a particular scenario route, you will A be there all day with the detail and it will never, it’s like a birthing plan for anyone that’s ever had a partner or has been pregnant, don’t need the plan, it never works…
Kizzy Augustin, Partner, Mishcon de Reya
It never worked for me!
Crystal Danbury, Industry Health & Safety Risk Consultant
It never works, so, but what you’re actually saying is, when something negative happens, who needs to know? Where do I need to go out and touch? Where do I need to support from? It’s identifying your resources and your people and your communication chains when something negative happens and just remember, if you call somebody at 2 o’clock in the morning, you’re calling a competent party and all of that normal risk assessing and conversation about what should happen next, part of that plan is, I’m talking to the right person and we decide then, you don’t have to know the answers before.
Kizzy Augustin, Partner, Mishcon de Reya
Agreed. And I just, sorry, Alex, did you have something to add?
Alexandra Clough, Partner, Mishcon de Reya
I mean I was going to say I think, you know, that the second part of the preparedness plan is thinking about not just the, the first 24 to 48 hours but the, the longer term, how do we learn from this? We don’t want to kind of pave over these cracks and we find ourselves in this situation again in six months or a year. We need to have a, have a plan about you know when the dust has settled learning.
Crystal Danbury, Industry Health & Safety Risk Consultant
Yeah, so I think bedding in the internal investigation into that preparedness thing is when do you kick off, what do you gather on the day essential.
Kizzy Augustin, Partner, Mishcon de Reya
A part of your long term protocol, right?
Crystal Danbury
Industry Health & Safety Risk Consultant
Absolotely. I think great point, Alex.
Kizzy Augustin, Partner, Mishcon de Reya
Yeah. I just wanted to try and see if I could fit one more in, I know we’re, we’re closing up to time. Just Leonard, Leonard has asked the question, when you say directors, we mean owner. I’m just going to answer that very, very quickly. There are specific offences in health and safety for directors and senior managers and the definition of what we mean that could be quite wide so it’s, I think it’s anyone who has influence over activities, anyone senior enough to make those decisions and be accountable, so it doesn't have to be someone who’s go the name director in their job title.
Okay. Thanks for sticking with us. If, hopefully, some of this has resonated with some of you on the call but if you’d like to speak to any of us about the issues discussed or perhaps any other health and safety related issues, there’s going to be a link in the follow-up email to all of you maybe to put in a fifteen minute discussion with myself or Alex or we can get some advice from Crystal but leaves me to say thank you very much for joining us, we hope you’ve enjoyed, and see you seen at the next Flash Webinar.