Regulatory investigations can have significant consequences for organisations and their leadership, particularly in high-risk sectors such as highways and construction. Knowing how to prepare for, respond to and learn from serious incidents is essential to protecting both people and businesses.
In this member interview, Stephen Barnfield, Partner and Regulatory Specialist at Forbes Solicitors, shares his experience supporting organisations through regulatory investigations, discusses the common challenges facing the highways sector, and offers practical advice on reducing regulatory risk and strengthening health and safety compliance.
Q: Can you tell us about your role at Forbes Solicitors and the type of regulatory investigations you typically support organisations through?
A: I joined Forbes in February after nearly 20 years at another firm. I deal with a range of regulatory and professional disciplinary issues but much of my time is spent dealing with safety advice, investigation and incident support and defence of safety prosecutions.
I have always represented quite a wide range of clients, from individuals through smaller businesses, local authorities and multi-nationals, covering a wide range of sectors, but because safety makes up a large part of regulatory work and because safety issues in construction and transportation are so prevalent, quite a lot of my time has been spent working in those sectors.
Q: In the highways sector, what are the most common health and safety issues that lead to HSE investigations following an incident?
A: The biggest challenge in highways in my view is that it is a relatively high risk activity often involving complex construction, but in direct interface with the public rather than on a closed building site. Managing sites so that the public are not at risk, and workers are not at risk from the public in active roadways, is a constant battle.
Across all sectors, communication and understanding what respective parties are doing is a key issue. This is why there are specific regulations in place to encourage and direct coordination, and why it’s so difficult when a big part of that picture in the form of motorists, are not part of that conversation, save for communication by road signs, speed limits and placement of cones. The biggest challenge with that is that motorists, as we know, don’t always do what they are told!
Q: When a serious incident occurs, what are the biggest mistakes organisations and directors make in the immediate aftermath?
A: In a word, panic.
There is a very natural instinctive reaction to communicate, share, gather; there is a similar urge to correct anything that is wrong. Both instincts create regulatory risk:
the raft of emails we often see between internal stakeholders likely will not be protected by legal privilege so are effectively made in the open; in other words, the frank, panicked reactions are in a form that can be seized, considered and even read out in court;
putting things right is very normal urge; going the extra mile and correcting things so that issues are ironed out is a dangerous step too far – the difference between an urgent revision to a risk assessment or method statement to prevent repetition (which is fine and good practice) and ‘updating’ a risk assessment that is implicitly backdated (not fine – quite possibly an attempt to pervert the course of justice and prison sentence to follow) is relatively subtle. In the face of the panic that follows an incident, it is surprisingly easy to lose sight of what is and is not OK in the heat of the moment.
Both of these issues really serve as the key reason to seek urgent and competent legal advice when things go wrong, or, better, to seek advice before things go wrong!
Q: With directors facing increasing personal accountability, what steps should senior leaders take to protect both their workforce and their organisation?
A: There a few key issues:
- Effective and safe management – follow available guidance; HSE and IoD issued a clear and helpful guide which serves to set out a management and review structure to allow board assurance as to safety issues
- Ensuring disaster response procedures are clear, effective, communicated and available, so that when things go wrong, there is a clear path to avoid the panic that will otherwise take hold
- Ensure that the business has adequate insurance cover to provide for director and officer advice and representation – because individual interests do not always align with corporate interest, but BOTH require advice.
Q: HSE statistics continue to show fatalities involving falls from height, moving vehicles and moving objects. Why do these risks remain such a challenge, and what can businesses do to address them?
A: Someone once told me that risk comes from potential energy, because that has the potential to do things which we do not necessarily intend. I’ve come to the view that they were right.
Falls and falling items are a constant risk simply because the risk of falling is ever present. HSE stats over many years have shown that falls even from relatively modest heights have often surprisingly serious consequences. These risks are everyday risk about which everyone tends to be perhaps over familiar or complacent – we’ve all stood on dining chairs to put stars on Christmas trees and the like – and they seem less obviously ‘scary’ than, say, the risk from high voltage equipment.
Vehicles present similar problems. They are very familiar and people become complacent, but at the same time present very serious risk of harm. The difference between, say, a well-managed car park and a busy depot is not always obvious, but site vehicles and, say, FLTs, do not behave in the same way as supermarket shoppers.
Q: If you could give highways sector organisations one piece of advice to reduce their regulatory risk and improve compliance, what would it be?
A: Probably the saddest thing I see as a regulatory lawyer is that organisations that suffer serious incidents almost always come to significant realisations regarding the shortcomings of their practices and procedures. I can’t recall many who haven’t made some changes, sometimes critical changes.
The challenge is to gain this level of insight BEFORE something goes wrong. The only way to do that is to resource safety properly, keep up with news and developments and have honest conversations.
Organisations like LCRIG are key to such proactive benchmarking.
The HSE and IoD guidance I mentioned above has a range of sensible steps to make safety central – incorporating safety metrics in recruitment, performance reviews; showing the importance of safety through on the ground engagement but also through measures such as awards that recognize good practice. These are all small things – nudges – that add up in time to improve safety performance.
Thank you to Stephen for sharing his insights and practical advice with the LCRIG community.