What to Expect When a Health and Safety Inspector Calls? Part 2

In our previous blog we covered the two enforcing authorities responsible for health and safety in the workplace and their powers.  In this blog we are going to look at what to expect when a health and safety inspector visits your site, how you can prepare and the formal and informal interview process.

What can prompt a visit?

You could receive a visit simply because you haven’t had one for a long time or as part of a targeted campaign such as those covering the construction/refurbishment sector, asbestos removal and solar panel installation.  Most of the time inspectors base their decision on a reactive basis to follow up a serious accident or complaint.  They find out about accidents through the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR) reporting process, or sometimes via newspapers or reports from hospitals.

Although reporting an accident doesn’t guarantee contact from an inspector, it can lead to a visit. Usually, the severity of the injury and the circumstances affect their decision. For example, if the inspector reads the report and suspects that a breach of legislation may have caused the accident, a visit is more likely.

The inspector may well phone or write to you to see whether any concerns can be resolved without a visit.  If they do arrive at your door, the inspector is quite likely to look at a multitude of issues, not only those relating to the accident or complaint.

Inspection visits will either be announced or unannounced.

Announced inspections

Businesses will receive announced visits periodically. In some cases the periods between inspections can be very long. However, if you are in a higher risk type of business or you’ve had a visit before, inspections might be quite frequent, e.g. six monthly to two yearly, and are likely to include announced as well as unannounced visits.

The advantage for the inspector of making an announced visit is that they expect the “right people” will be available to answer their questions.  When the health and safety inspector writes or phones to tell you they are intending to visit, you don’t have the option to decline. The best you can hope for is to try to schedule the visit at a mutually convenient time, although they certainly don’t have to agree to your terms.

Unannounced inspections

Inspectors have the power to enter your business premises without a warrant, at all reasonable times.  As they have even more extensive powers than the police.  Unannounced inspections are more likely to occur where the inspector is following up a complaint or a serious accident.

What might they want to see/do during their visit?

• Inspectors may be keen to have a good look in every nook and cranny of the premises or just be interested in quite narrow issues. The current trend is for targeted inspections covering particular issues in-depth. Whilst they won’t walk past something obviously dangerous, you may find inspectors to be very focused on specific issues such as stress or manual handling.
• The HSE business plan is published every year and sets out their priorities. Current target areas are key health risks. The HSE state in its 2017/18 business plan that inspectors would be starting a three-year programme on “Health and Work” to target stress, musculoskeletal disorders and occupational lung disease.
• Inspectors are trained to look deeply into the way organisations operate. Don’t be surprised if they want to look at plant rooms, flat roofs, under-stairs cupboards, toilets, locker rooms and rest areas. Flaws in the workplace such as torn carpet or a leaking roof can lead to penetrating questions about the organisation’s arrangements for maintenance; an innocent stepladder may raise concerns over the control of work at height and so on.
• They’ll also be very keen to look at documentary evidence that you’ve kept regarding health and safety. The health and safety inspector may ask to see your health and safety policy, risk assessments, records of inspections, accident book, maintenance records, safe systems of work procedures, reports of examination and test of lifting equipment/pressure systems, etc. What they’ll ask for will depend on the nature of your business and the issues being examined in the inspection.

Note: – It is essential that you have up to date records (electronic or paper based) that are easily retrievable.  Don’t underestimate the amount of work required to prepare for a visit and the amount of documentation that may be requested as evidence of your health and safety arrangements.

What type of questions will the inspector ask?

Most discussions with inspectors will be quite informal and involve general questions about the way the business operates and how health and safety is managed.  Certainly during announced routine inspections.  It would only become more formal if a serious non-compliance was found which required investigation.  When inspectors are turning up in response to complaints or accidents however, it’s quite likely that one of the formal interview types will be used, as described below.

Note: It’s an offence to obstruct an inspector so it is important that all staff respond in a helpful and truthful manner to any questions raised. Never try to prevent employees from talking to an inspector, it’s a criminal offence.

Section 20 interviews

• Inspectors have the power to undertake interviews with anyone who is able to provide information on an investigation. Under s.20 of the Health and Safety at Work etc. Act 1974 (HSWA), they can require the questions to be answered and a declaration of truth to be signed by the person answering.
• The inspector has the right to undertake the interview without anyone else being present other than the people the inspector invites, with one exception – they have to permit to be present any person nominated by the interviewee.  That person can be anyone the interviewee chooses including a manager, supervisor, colleague or union rep.

Tip:  It’s quite sensible to take someone else to a section 20 interview. The law doesn’t give you a right to receive a copy of your signed declaration so it’s handy to have someone else present who can take some notes.

Sometimes, the questions under s.20 are sent in writing rather than by face-to-face interview.  If this happens, the inspector may throw in every possible question vaguely in connection with the subject.  Some questions might, on the face of it, appear quite innocent, but they will always be based on legal requirements.

Tip: It’s best to get legal or professional health and safety advice before submitting answers to these written questions.

PACE interviews

• PACE interviews are conducted under the rules of the Police and Criminal Evidence Act 1984 (PACE).  They must be followed by the inspectors when they are interviewing under caution. Anything stated in such interviews is automatically admissible in court. These are essentially the same as police interviews and could involve a formal invitation to take part in an interview which is recorded, or may simply involve a caution being issued on the spot during an inspection.
• Bear in mind that whilst you’re not required to say anything under caution, it could harm your defence if you do not mention at that time, something which you later rely on in court.  Of course, this phrase forms part of the formal caution issued by the inspector.  Further information on both types of formal interviews can be found here

Final comments

Regardless of the reason for the visit, inspectors are likely to want to see your entire site and therefore it’s important that you are prepared.  In the next blog to the series we will look at the fee for intervention (FFI) scheme.  We will cover what it is and why it matters if the inspector is from the HSE and they discover a material breach.