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To report or not to report
Our Crime and Regulatory team recently dealt with a case where a retailer was investigated and interviewed for safety offences after an in-store incident when an elderly customer fell on the shop floor. Our client had reported the case to the local authority under the Reporting of Injuries Diseases and Dangerous Occurrences Regulations 2013 (“RIDDOR”) and only then did they telephone us to advise on their investigation, response and possible criminal liability. This resulted in many hours of time and cost then having to be incurred in dealing with the safety inspectors before the case was finally discontinued when as it transpired, the matter never required a RIDDOR notification to have been made from the outset.
We get quite a few enquiries asking us what is or is not reportable (and by whom) so we thought it would help to provide this brief summary as to some of the things to have in mind immediately after an accident.
There are quite a number of grey areas in the Regulations. They are open to interpretation and a legal opinion should always be sought before a report is made. At one end of the scale, some are so obviously reportable that the only queries are: who must report, the required content of the report and how long you have in which to submit the F2508 form. More commonly the interpretation of RIDDOR as to what is known at the time may be a bit more complicated.
Even a fatality to an employee might sound a clear and obvious case to report, but what if the incident relates to a cardiac event, or after the end of their shift when they are no longer “at work”, and may be outside of the store area? Assaults or even threats of assaults, lone working issues and increasingly, mental or occupational health related events may be unclear. Interactions between customers and security staff, deliberate criminal acts (rather than “accidents” as such) and public entertainment events can need careful consideration before concluding that a matter definitively must be notified.
Frequently we are asked to consider whether transport journeys and foreign trips or work outings are “at work” and even then, the HSE’s own website recognises and even encourages an element of common sense and judgement to be applied. It realises that an element of remoteness must come into play and suggests that there has to be at least some evidence of a causal connection from your initial investigation enquiries to a “work related” event to make it a reportable incident. It needs something over and above just that your workplace was the location of the accident.
The extent of the injury will always be relevant. Whilst many clients will want to capture “near misses” to learn lessons and reduce risk going forwards, it may be that the event in question is not reportable under RIDDOR, even where the outcome could have been fatal and by pure good fortune in fact nobody gets hurt. The HSE website says this (our emphasis added):
“Injuries themselves, e.g. ‘feeling a sharp twinge’, are not accidents. There must be an identifiable external event that causes the injury, e.g. a falling object striking someone. Cumulative exposures to hazards, which eventually cause injury (e.g. repetitive lifting), are not classed as ‘accidents’ under RIDDOR.”
In practical terms those matters where the answer and the connection to a “work related activity” is fairly obvious will very often be those where the Council and/ or HSE have already been notified about the event by the emergency services and are probably already on the scene anyway, long before any investigation has begun.
The HSE take a pragmatic view that an element of subjective judgement needs to be applied before a clear view can be taken one way or the other, perhaps backed up by a second opinion, and experienced legal advice may be necessary to form a view on these issues. They go on to say (our emphasis added):
“RIDDOR only requires you to report accidents if they happen ‘out of or in connection with work’. The fact that there is an accident at work premises does not, in itself, mean that the accident is work-related – the work activity itself must contribute to the accident. An accident is ‘work-related’ if any of the following played a significant role:
- the way the work was carried out
- any machinery, plant, substances or equipment used for the work or
- the condition of the site or premises where the accident happened”
Sometimes it can take expert opinion, or more evidence gathering before it is clear what, if any, of those played a part and if so, if it reaches the required test of “significant”. Facts need to be established based on interviews, documents and evidence, and care needs to be taken as to the standard and quantity of proof adopted to be able to examine the key elements to decide whether or not you are required to report anything.
Once it is clear that an incident is reportable, the next issue which may not be straightforward is who is required to report it. This can take some unravelling to identify who is the “responsible person” which is more often than not a corporate entity rather than a human individual and even then may be a matter of debate for concessions, contractors and self-employed persons even where an accident occurs on work related premises.
With sentences against large food businesses and retailers now based on their turnovers and multi million pound fines becoming far more common, it is really important to get this right and advice sought at once, almost as soon as an incident occurs. Similarly for the individuals concerned the very fact of having considered the question and forming an honest and reasonable view based on advice will give the business and the senior managers some protection if they turn out mistakenly not to have reported an incident.
Any notion at all that individuals might simply be trying to avoid having to report bad news in the hope that regulators may never find out would be treated very seriously by the regulators and possibly the courts too in the event of a clear and deliberate attempt to hide away from responsibility.
For more information or if you have any enquiries about a particular incident please contact Chris Green.