Health And Safety Regulatory Investigations - Privilege Redefined

Background

Whilst legal professional privilege is a concept which pervades most practice areas, there are arguably limited contexts where it is more essential than during an investigation by the Health and Safety Executive ("HSE") or a Local Authority ("LA").

The HSE and LAs have powers pursuant to s.20 of the Health and Safety at Work Act 1974 ("HSWA"), which are more onerous, draconian and invasive than the powers available to either the police or some other regulators. Powers include the ability to enter premises at any reasonable time, to seize documents and materials, and even to compel an individual or company to answer its questions. To contravene an Environmental Health Officer's/HSE Inspector's use of a s.20 power (either by obstructing, or failing to comply), is of itself a criminal offence.

Whilst the rationale behind the provision of these remarkable powers is understandable, to allow the HSE/LA to properly investigate risks to health and safety in order to protect the wider public so far as possible and properly administer justice to those who have failed in their duties, it can sometimes feel like they are able to run riot through a business without restriction.

However, a restriction does come in the form of s.20(8) HSWA, which provides that the HSE/LA cannot "compel the production by any person of a document of which he would on grounds of legal professional privilege be entitled to withhold production". Legally privileged documents are therefore the one category of document, which a business can legitimately refuse to provide to the HSE/LA (even where compelled to), without committing a criminal offence. The preservation of privilege in the context of a HSE/LA investigation is therefore paramount to protecting a client's position as far as possible.

Post-incident investigation

Following an incident, regardless of whether there has been a fatality, minor injury, or simply the existence of a risk that did not actually materialise, a business will undoubtedly need to investigate the circumstances of the incident in order to understand: (i) the factual matrix of what occurred; (ii) whether any failings on its part were causative of the incident; and (iii) whether it needs to take remedial action to prevent a recurrence.

If a company were to progress that investigation without obtaining legal advice, and thus availing itself of legal professional privilege, the HSE/LA could simply compel the company to provide all of the...