How Do I Reduce the Chances of a HSE Investigation?

RIDDOR: Reducing the Chances of HSE Investigations

Date Posted: 13th September 2021

How Do I Reduce the Chances of a HSE Investigation?

Hello everyone. And full disclosure. The recording for the webinar didn’t work and exported and crashed. And so I’m going to record this by myself and pretend all 50 of you are still there. 

So my name is Will Taylor and thank you for watching this.

Hello to those of you I know and welcome to those of you who I’ve never, ever met. 

So I’ve got a confession to make before we begin. I do not attend Health and Safety webinars anymore, quite simply because I am bored, sick and tired of the 15 minutes introduction and sales pitch. So if you’re OK with that, I’m going to forego that. And if anyone does want to speak to me about my health and safety training, face to face training, virtual training, eLearning, IOSH or NEBOSH and so on, we can do that privately outside of this webinar. 

So let’s get stuck into it, shall we? 

So a couple of things I want to share with you today.

Well, why am I doing this? First of all is that I thought everyone did this. I assumed that everyone knew what I’m about to tell you. And it’s only after delivering a course at a large housing Association in London, a very bespoke Incident Investigation course, I came across 15 health and safety professionals, experienced people who just didn’t know any of this stuff.

And so I thought, well, maybe I should do a webinar to explain this to other people. Maybe that would be useful. 

So the two things that we’re going to get into, first of all, I want to see if I can help you reduce the chances of you getting an enforcement investigation when you submit a RIDDOR report and to help you do that, basically, I’m going to reveal which incident investigations require a mandatory investigation, (generally speaking), and therefore I’ll reveal which ones don’t. 

Secondly, the HSE can decide not to investigate if they have justification not to.

And I’m going to reveal to you the criteria that an incident has to meet for them to decide not to bother. And then I’m going to link all of this to the online RIDDOR report and explain how you can fill in that online RIDDOR report in such a way that you could possibly deter the HSE or the local authority Inspector from visiting you. 

The second part of this presentation I’ll give tips on how you might be able to influence the enforcement Inspector when they turn up. 

So how could you possibly sway them, influence them so that they give you the benefit of the doubt?

Now, full disclaimer here. There is absolutely no guarantee of success with these strategies. It depends on a lot of different things. It depends on the incident, depends on the circumstances. It depends on the Inspector and the region that you are in.

And so these tips may work sometimes, but if you use them all of the time, and let’s say you’re able to eliminate 10% to 15% or of your investigations and interactions with the HSE. If you did that over your entire career, what would the impact be for you? It would certainly be something quite positive. 

I also want to say before we get into this, a quick mention of ethics. To be clear, nothing that I say in this presentation should be interpreted as an encouragement to lie, to exaggerate, or to massage the truth with your RIDDOR reports or anything else that you say to the enforcement agency.

We tell the truth. We do not lie. That’s not just a legal requirement is also a moral requirement and probably a requirement of our IOSH code of conduct as well. We’re going to do the opposite. The entire opposite.

We are actually going to be more truthful. We’re going to give more details, very specific to show inspectors that this incident did not meet the incident selection criteria. So in fact, we’re going to do the entire opposite. 

Part One

How to reduce the chances of an investigation when submitting a RIDDOR report.

So the first point I’d like to make is that the HSE are busy. They’re really busy. They’ve been busy for years. The prosecutions are falling, inspections are falling, COVID, etc…they having to do Covid checks, which means they’ve got less resources for other things. There’ve been budget cuts over the past ten years. Their budget is 32% lower than it was ten years ago.

And there are shortages of HSE inspectors. And according to the non executive director, Kevin Rowan, companies are now more likely to be visited by an in HSE service officer than a HSE Inspector. And it is estimated that there are 300 fewer inspectors than there were in 2010. 

So what does this mean? 

It means that inspectors have to prioritise and pick and choose which RIDDOR reports they act on and investigate.

And so when it lands on their desk they have to decide whether to investigate or not according to criteria. They have what we call: incident selection criteria. 

And so what we write on the report is basically going to help them decide whether to investigate. And if you write the right things on that report, that may cause the Inspector to not investigate your incident. And just to re-emphasise this, you’ll find references to everything that I’m saying on the HSE website.

I mean, I’m not making this up. And if you don’t believe me, you can follow these links in this document. Go on the HSE website and read this yourself. And so you’ll see, there’s a reference here that says that the grounds for not investigating an incident which would normally be investigated is inadequate resources due to other priorities. 

So the question I’ve always asked myself and what I would like to put to you today is, is it possible to nudge a busy overworked Inspector away from from investigating your particular incident? I’d like to suggest to you that, yes, it is possible in some cases to do that.

You have to report fatalities, specified injuries, disease, dangerous occurrences, and so on. But not all of these actually require an investigation. Not all of these meet the incident selection criteria. 

These incidents meet the incident selection criteria: fatalities must be investigated, obviously, and the occupational diseases must be investigated, (generally speaking, there may be exceptions to that). 

Many of the specified injuries need to be investigated, but not all of them, and we’ll have a look at that. And when it comes to incidents like dangerous occurrences and any other type of incidents which indicate a likelihood of serious breach of the law, will require an investigation. So we’re going to focus on these two things to begin with. 

So which specified injuries needs to be investigated?

Well, here’s a list which you will find in quite a few locations on the HSE website. I’d like to draw your attention to A, B and C because they are different to the list of specified injuries in the RIDDOR legislation. So it doesn’t say broken bones, fractures or chips to bone or anything like that. It says serious multiple fractures, more than one bone, not including the wrist or the ankle. So that means if someone breaks a foot, it doesn’t meet the incident selection criteria.

So if someone breaks a foot and an ankle, it doesn’t meet the criteria. If someone breaks a leg and an ankle and a foot then that might meet the criteria. Amputations. Well, amputations up to the first knuckle are just the tip of the finger and so that does not meet the incident selection criteria. That would not require an investigation usually, just means they can investigate it if they want to, if they’ve got the time and if they think there’s been a serious breach of the law, but it doesn’t necessarily meet the criteria.

Permanent blinding in one or both eyes. You should note that it’s permanent blinding, not a reduction in sight. So a reduction in sight does not require an investigation. So just to summarise which RIDDOR investigations are not mandatory, which do not meet the criteria, like ‘seven day injuries’, that’s not on the list, the tips of fingers and thumbs that are amputated below the first knuckle, not on the list. One bone broken, not on the list, and wrists and ankles are not counted either.

So if they break wrist and another bone, then that only counts as one bone. And then the permanent reduction in sight rather than blinding. And finally, incidents which indicates no serious breach of Health and Safety law, and I’ll come back to that in a moment. 

So my first tip, my first actionable tip for you is this: if you think that your incident does not meet the incident selection criteria, then say so on your incident report, show it, show that it does not meet the criteria.

I mean, don’t say explicitly. It does not meet the criteria.

That might be construed by the HSE as trying to manipulate them. But say something very specific, that’s all you have to do. Just be specific about the injury. State exactly which bones are broken. Don’t just say they broke their leg, or they broke their arm. Say they broke one wrist bone and one forearm bone. 

The very first thing that I write about the incident is a description of the injury in detail, and I wouldn’t write they chopped off part of their finger, I would say: only the tip of the finger was amputated and it was below the first knuckle. 

And I’m hoping that if you write that in, the Inspector will read it and straight away, he’ll think that that’s not serious enough to meet the criteria. I don’t need to investigate that one. 

Where do you put this on the report?

Well, at the end of the RIDDOR report are some drop down boxes where you can select the type of injury and the body part that was injured. And unfortunately, there is nowhere there to put down things like: it was only the fingertip. It was the wrist bone and the forearm bone. There’s just no way of putting it. All you  can select is bone fracture, several locations. It’s very vague. 

So what I would do is I would type the information in the box relating to the incident itself, and it says: Describe what happened, give as much detail as you can, including the events that led to the incident and describe any action taken to prevent similar incidents occurring. 

So describe what happened, give as much detail. 

The first thing to say is what exactly the injury was and show them it doesn’t meet the selection criteria (if that is true, always be truthful).

What would justify not investigating an incident? 

In the HSE investigation procedure (freely available on their website), there is a document which has this text here: 

Factors weighing against investigation. The grounds for not investigating incidents that meet the selection criteria are where it is clear that all reasonably practicable precautions were in place at the time of the incident to reduce the risk of it occurring. 

Show that everything reasonable was done…

Write a long list of all of the control measures that were in place. Again, be truthful, no lies, no exaggeration, but write a long list so you can to try and persuade the Inspector that you did a lot. You did more than enough to prevent this from happening in the first place. And even better, take it a little bit further, refer to the ACOPS and the HSE guidance documents. So if you have an ACOP or HSE guidance document which is relevant, set out what those documents require and then explain that you did everything that was required. 

“It requires this and we did that”, and so on. Make that a lengthy explanation.

The last point I’d like to make on this is that inadequate resources are a potential reason for not investigating.

And here we have the document which applies to local authorities and how local authorities decide whether or not to investigate. And right at the very bottom it says: inadequate resources due to other priorities. 

And the question I would put to you is: given the way that you phrase your RIDDOR report, can you make your incident seem like a lower priority compared to other incidents? 

Well, depending on the incident, you might be able to do that, again, being truthful.

This final tip comes with a warning (and I’ll explain why in a moment), if everything reasonably practical was not done, so let’s say that there was room for improvement, there are some failings here, I would include details of all of the actions that you are GOING to take to prevent reoccurrence, show them that you are taking this very seriously. Show them that you have everything in hand to prevent reoccurrence, and they may decide that you’ve got everything in hand and that they don’t need to attend. 

Now, please be careful here. Those of you who are legally inclined will recognise that there is a danger that you might accidentally admit guilt here. And so avoid admitting that you broke the law, avoid admitting that you did not do everything reasonably practicable because then that would be a very easy improvement notice or even a prosecution and so on. So that’s best avoided.

But just say you’ve done a lot. Provide a list of all the things you’ve done. And clearly those haven’t quite worked because of this incident, so we’re going to go further and take the following actions. 

And you know, this does work. I’ve witnessed a HSE inspection recently. I was delivering training for a client just this week. And on Tuesday, the HSE turned up out of the blue to do a surprise inspection. I’m delivering training in the boardroom. They’re down in reception.

They speak to the Ops Director and it was squeaky bum time because the Ops Director knew that things weren’t perfect. Hence why I was delivering training to help the organisation fix things. And anyway, the Inspector asked to look at their risk assessments, (one of the first things they ask for, usually) and the first thing the Ops Director said was: I want you now, the risk assessment’s not very good. We are aware that they are not very good. I’ve been here a year. We’ve put in place a plan to improve our safety standards. We’re employing a health and safety advisor from next month. And we’re currently doing our third IOSH Managing Safely training right now in the room next. We’re investing heavily in this. And we’re fully committed to improving these things. 

And so he was able to set out the improvements in the plan. And honestly, he expected to get to probably three improvement notices, because there were issues with the risk assessments and issues with COSHH assessments. There were guarding issues on machines. And as it turns out, the Inspector didn’t take any of those actions.

The inspector said they will write a letter with advice, obviously, that’s chargeable with the fees for intervention. But it’s a lot better than being subjected to an improvement notice, which requires you to do things within a matter of weeks instead of maybe the months that they will be taking. So showing that you have a plan in place really does work. 

Part Two

The enforcement inspector visits…how to reduce the chances of enforcement action.

So, despite all of your efforts, the enforcement inspector might visit. So I wanted to talk about, how do you reduce the chances of this person taking enforcement action against you? 

Now, this applies to all enforcement inspectors.

It could be the environmental agency, the Fire Rescue Service, local authority and the HSE, and they might be visiting for any reason. It could be an investigation from a RIDDOR report, but it could also be a tip off because someone’s blown the whistle. It could be an inspection campaign or report from another agency. 

And as for tip offs, some years ago, I was working in an organisation where we purchased another factory. And so we were brand new there.

And on my second visit to that factory, we had a surprise inspection by the HSE. This young lady turned up and she’d been tipped off by disgruntled employees who weren’t happy with the redundancy process that we were about to go through. So I greeted her and I used all of the techniques that I’m about to talk about right now.

And as soon as she walked onto the factory floor, she saw the problem, which I was well aware of, and I was in the process of trying to fix it. But basically, there were lots of large podium steps, large like gantries, that had been built that people were stood on. And they were a good two metres off the ground and they didn’t have any guardrails whatsoever. Just complete flat open edge. And they were working at heights. Lots of people on these platforms all over the shop floor.

And as soon as she saw them her eyes opened and she said it was a serious imminent danger. And she started to issue a prohibition notice and I was able to stall her by saying: please just give me 1 hour, you can have a look at all the other stuff, whatever you like, but just give me 1 hour. I am in the process of fixing this right now. In 1 hour, I can get all these things guarded.

And I knew that in the warehouse we had all the parts because these were things that you could build, you know, like Lego. And it took a little bit longer, an hour to 90 minutes. But 90 minutes later we managed to cobble together guard rails, which were a bit Jerry rigged, but it was sufficient enough for her to not issue a prohibition notice. So we got away with that one. 

So I’m going to talk about how I did that.

A standard visit kind of looks a little bit like this: they might warn you that they’re coming with a letter or they may just turn up when they turn up, greet them and make sure you get ID. I once had someone try to blag their way on site, trying to persuade me that they were from the HSE. So check something called the warrant card. They should have a warrant card with them.

They’ll want to speak to relevant managers, senior managers, usually Ops Director, Ops Manager, Site Manager, that kind of person. And they’ll usually ask for documentation like risk assessments, policy, things like that. And then they’ll want to walk around and see what you do. While they’re doing that, they will want to speak to people. Safety reps are usually a good choice.

And then they will inform you of the outcome of their visit. 

Now, what I’m going to talk about here is there are lots of things we could say about how you handle inspectors, but I’m going to focus on one thing. And that is building rapport with this Inspector, building a relationship in the very short space of time that you are with them. And this is a transferable skill. What I would say is this if you can build rapport with the Inspector, if you can get them to warm to you, or at the very least, don’t get them to dislike you, because if they dislike you, they’re probably not going to give you the benefit of the doubt.

But if they do like you. If they’ve warmed to you, then they might be inclined to give you the benefit of the doubt and will not take action against you, or they might reduce the action. 

Now again, there’s no guarantee that this will work because there will be some situations where it’s just black and white. If you are breaking the law and it’s a serious breach of the legislation, then chances are it doesn’t matter what rapport or you’ve got with them, they’re going to take the necessary action, especially if it’s in the public interest.

On the other hand, if everything’s fine and you’re going above and beyond what the law requires, if you’re not breaking the law, then this is going to help if you’re in the grey zone (and there are times when there’s a grey area, there are times when the law has to be interpreted, where the guidance is not clear, where it’s not clear that taking action would be in the public interest), 

And so that’s where building rapport is going to help. And so just as an example, I once had a Fire and Rescue Inspector visit one of my sites to do a standard audit.

And during the audit he asked for the training records on fire extinguishers, which I didn’t have. The reason I didn’t have them is because our insurance company had told us we don’t want you to train people to use extinguishers because that’s dangerous and it could lead to an employee liability claim. So we’d rather that they just leave the building. So we deliberately chose not to train people. And all of our fire action notices on the walls said: do not attempt to fight the fire under any circumstances.

So we did have extinguishers, but they were just for show. I explained all of this and he said: well, I’m afraid your insurance company doesn’t decide what the law is. The Regulative Reform Fire Safety Order requires that you provide training in the use of fire extinguishers. Well, I’ll tell you what happened in a moment and how I wriggled out of that one, but I essentially managed to persuade him that that’s not what the law required at all. And I won that argument.

Now, how do we start with this? Well it starts with attitude, you have to approach people with the right attitude. Say to yourself, it’s good that they are here. It’s good that the HSE or Fire Service have turned up. There is a silver lining.

Now what’s the silver lining? 

I’ll tell you what, it’s a win win when the HSE turns up. So if the HSE turns up and they take no action, they leave very happy. Brilliant. You can tell your boss and a management team that after all your hard work, the HSE were very happy and took no action.

And then you can tell all of the other managers, the team leaders or supervisors, you can say: well done, everyone. Thanks to all your efforts in keeping this place safe on a day to day basis, the HSE walked out very impressed. 

So you can use it for your positive re-enforcement.

That’s fantastic. And it’s also brilliant. If they take action against you. It’s wonderful. They serve an improvement notice. Wonderful. Because now you have ammunition to negotiate with management, the improvements that you need to make to drive performance forward. You’ve probably been asking for stuff and they’ve been saying no and all of a sudden you’ve received an improvement notice or a prohibition notice telling you to do, which is what you’ve been asking for. Fantastic.

Whatever the outcome, it’s a win win…

So take that mentality. Take that attitude, go to reception to greet them and welcome them. Tell them that you’re really glad they’re there and that you’d love to show them around.

Whilst on the tour, ask them what else you can do to make things even better. Or, maybe you’ve got a few issues that you wouldn’t mind showing them it to get their input. Perhaps there are things that you are concerned about and want to check if you’re right to be concerned or not.  Just tell them that you want their input, tell them that you’re interested in what they think. 

Now let’s just put this into perspective, they visit a lot of sites. They investigate things. What do they get greeted with? Blank stares, tear up disgruntlement managers who don’t come straight away and leave them hanging around in the reception. Some people just obnoxious and abusive. And here you are, extremely positive, offering a coffee or drink and so on. 

Now, the next thing I would say is this, don’t try to take over the visit. Acknowledge their authority and tell them it’s their visit and you’re their guide to wherever they want to go. Assure them that they’re in charge. They’re the HSE Inspector. 

Ask them what they are there to see? Ask them what would they like to do first? And they’ll probably start to warm to you. 

Now on your way around or whilst you’re looking through the paperwork, you may come across a problem. And here’s the key thing when you come across a health and safety problem and they say that this is not good. Express as much agreement as you can. Very importantly, do not argue with them.

Don’t get into an argument because arguing damages rapport. We don’t like people who argue with us. And you know that because you’ve been on social media when you’ve butted heads with people before. The moment someone starts to argue with them, you like them less. You’re not going to give them the benefit of the doubt.

So we want to come across as agreeable as we can. And, well, we’re going to try to agree with them as much as we can. Now, sometimes you can’t agree with what they say. They might accuse you of breaking a law when you’re not. So we’re going to try and agree as much as we can.

It builds rapport. It reinforces rapport and warmth, and they’re more likely to like you. Sometimes you can’t do that, sometimes sometimes you can only validate what they say, so it’s like a partial agreement. 

You could say: I never thought about it that way. Well spotted. A good argument. I like that. 

So you don’t have to agree with what they say. But you could agree that it is a valid way of looking at things and that you agree that they’re kind of entitled to their point of view.

But what if you really don’t agree…

Now, sometimes you may have to disagree. And so here’s one final tip on disagreement whilst still sounding agreeable. You’ve got to learn to disagree without being disagreeable. And this is what I did with that Fire and Rescue Inspector who wanted the training records for the fire extinguishers. There was a very simple thing that I did.

I replaced the word ‘BUT’ with ‘AND’. A very simple tip, yet this is so powerful and it is so effective. And this can transform your arguments with people. 

So let me give you some examples of how this might work:

Someone says: “I see what you’re saying. But our risk assessment concluded it would be unreasonable for us to do that”.

Just change that one word. And you’ll notice that your attitude changes, your tone of voice changes and you sound a lot more agreeable and a lot more open.

 You might say: “I see what you’re saying. And our risk assessment concluded that it would be unreasonable for us to do that”.

I’ve said the exact same thing. But replaced of the word ‘BUT’ with ‘AND’. Which one do you think sounds more agreeable? 

Let’s have another look at this one: “I’m aware of what the guidance says, but I don’t believe this guidance is relevant to this situation”.

Sounds like an argument, doesn’t it? But what about: “I’m aware of what the guidance says. And I don’t believe the guidance is relevant to this situation”. 

Which one sounds more agreeable? 

You see, the word ‘BUT’ distracts attention for what you just said.

You could say: “I agree with you, but…”

It focuses all their attention on the word ‘BUT’, the negative bit you say afterwards. 

So it’s almost as if you didn’t say the other bit, it gets deleted and it just sounds like an argument. It deletes the agreement you just said and focuses attention on the word ‘BUT’. Whereas the word ‘AND’ has the opposite effect. It accepts and acknowledges what they say. You’re not discounting anything they’ve said.

And let me just add this to the point as well, don’t just use this on the HSE inspectors. Use this everywhere. Practice it. Let me know how this transforms your relationships. 

Summary

Put effort into writing your RIDDOR description of the incident. Check: does it fall outside of the incident selection criteria? If it falls outside of it, make that abundantly clear. 

Was everything reasonable done? Did you do everything that the ACOPS and HSE guidance document says? If so, make that abundantly clear, spell out exactly what you did and how you complied with the law. 

And do you have a solid plan to prevent reoccurrence? If so, describe that plan in detail. Truthfully, no lies, no exaggeration. Describe what your intentions are, and hopefully they will de-prioritise your incidents. 

Next build rapport with the Inspector. Remember is is good that they’re here. There’s no bad outcome for this.

Show gratitude for their visit. Welcome their input. Acknowledge their authority and tell them you’ll take them anywhere they want to go. 

Don’t disagree, and certainly don’t argue. If you do happen to disagree, do it agreeably.

And replace the word ‘BUT’ with the word ‘AND’ to add a positive outcome to your disagreements to avoid them becoming arguments.

So thank you very much for reading. Thank you for your time. Thank you for your attention, because those things are literally the most important thing that you have.

Do you have any questions? 

Or if you would like to chat about health and safety, about training, or about our amazing next generation interactive video eLearning courses or face to face training (if that works better for you), please send me an email (will@compassa.co.uk).

Thank you again. And I’ll speak to you soon.