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With a stretched Health and Safety Executive falling short on mandatory investigations into workplace incidents, Fieldfisher's health and safety experts consider the consequences for workers and businesses.
Recent reports suggest that serious workplace accidents are not being investigated by the UK's safety regulator, the Health and Safety Executive (HSE).Trade union Prospect found that 389 mandatory investigations were not undertaken by the HSE in 2021-2022, which is up from just two five years previously in 2016-2017.
The HSE undertakes mandatory investigations in cases of fatalities, serious injuries or diseases.
The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR) Reg. 4(1) specifies injuries that must be investigated, including serious multiple fractures, amputations, permanent blinding, serious crush injuries, burns or scalping, loss of consciousness caused by head injury or asphyxia and any injuries leading to hypothermia or heat induced illness.
RIDDOR Regs. 8-10 specify reportable occupational diseases, which include conditions ranging from recurring cramp through to asthma and cancer.
In addition to the specified reportable injuries and diseases, incidents that indicate the likelihood of a serious breach of health and safety law (including any incidents considered liable to give rise to a serious public safety concerns), and major hazard precursor events, must also be investigated.
Why has the number of mandatory investigations fallen?
Given that the list of reportable incidents have the potential for serious and life altering consequences for workers, it should be a matter of public concern that investigations are not being carried out in these circumstances.
The reports published cite insufficient resources at the HSE to carry out all the obligatory investigations.
However there may be other reasons why the HSE is not investigating. For example, key evidence may no longer be available, or there may be no reasonable way to avoid a reoccurrence.
It was reported by the Guardian that approximately half of the 800 incidents reported in 2021-2022 that triggered a mandatory investigation were dropped by HSE because reasonable precautions were already taken.
The same report also suggested a similar number were dropped due to insufficient resources, noting recent funding cuts, and an associated reduction in headcount at the HSE.
This situation appears to contradict the purpose of mandatory investigations, which are obligatory by law to understand how incidents have happened and enable employers to mitigate the risks of a recurrence, ensuring safe workplaces and, by extension, reducing the chances that employers will become embroiled in expensive, stressful and reputationally damaging personal injury claims.
The sombre reality is that the reduced efficacy of the HSE could result in increases in workplace accidents and other incidents, which in turn could lead to an increase in employers' liability insurance pay outs and corresponding higher insurance premiums (or at least provide a pretext for insurers to increase the cost of coverage).
Why should companies perform their own internal investigation?
While the HSE has responsibility to investigate serious workplace accidents under RIDDOR, it is also important for companies to investigate incidents, irrespective of whether the HSE decides to take action.
Companies should conduct their own internal investigation to understand the causes of incidents and take steps to eliminate or reduce the prospect of a repeated occurrence, and document these actions so that they can demonstrate their efforts to make workplaces safe, if the need arises.
Should the HSE in due course also investigate the incident, a company's internal investigation and corrective action will place the company in a better position when dealing with the HSE and any possible enforcement action.
Overall, the declining influence of the HSE and its dwindling resources is expected to result in a loss of valuable experience and preventative practical knowledge, impacting the HSE's ability to deliver advisory and regulatory functions and enforcement action – a situation that paints a worrying picture for the future of workplace safety and litigation risk for employers.