Crisis management: Keeping calm in the eye of the storm

Businesses across Lancashire are being urged to make sure they are prepared to deal with a major health and safety incident and any HSE investigation that is likely to follow. The message delivered by experts at an interactive workshop organised by NFU Mutual Preston was clear: “The moment you don’t want to find out you’re in a crisis is when you’re in a crisis.”

An invited audience of around 40 from across a wide range of sectors attended the ‘Corporate Crisis Management: HSE Incident Response’ event held at Ribby Hall. They were given insight and advice from members of leading law firm DWF’s award-winning regulatory, compliance and investigations team.

The workshop used a real-life scenario involving a serious premises-based injury to examine and discuss the issues arising from such an incident.

The issues covered on the day included:

  • Immediate crisis response
  • Managing crisis PR and communications
  • Carrying out an internal investigation
  • HSE enforcement powers
  • Interviews under caution and legal privilege
  • Possible sentencing and fines to companies and individuals

DWF partner Vikki Woodfine told the delegates that it was vitally important for businesses to consider crisis management and to have a plan that can be put in place if the worst should happen.

If you haven’t thought about a
plan in advance, it is a little too late in the immediate aftermath. It is important to get things right.

That plan should look at how to operate in the immediate aftermath of the incident, it should look at how to manage media and communication issues and it should look at how internal investigations are carried out.

Other issues that should be considered include business continuity, duty of care and the welfare of workers who may be traumatised by an incident. Vikki said: “If you haven’t thought about a plan in advance, it is a little too late in the immediate aftermath. It is important to get things right.”

Gary Smith, a director at DWF who specialises in health and safety and corporate manslaughter, revealed that that in the UK 600,000 workplace accidents happened every year, with around 130 or 140 proving fatal.  He put the total cost of work related accidents and ill health in the UK at £15bn and he revealed a third of fatalities happened as a result of falls from a height with 31 per cent of non-fatal accidents caused by slips, trips or a fall.

And he also warned that when it came to sentencing, accidents which left people paralysed or requiring support for the rest of their lives were treated in exactly the same way as fatalities.

Gary also told the audience of the possible impact of the government’s ‘Fee for Intervention’ (FFI) scheme.

It means that if a business is found to be in material breach of health and safety law, it has to pay for the time it takes the HSE to identify the breach and work with the business to put things right. This includes investigating and taking enforcement action.

Big companies are picking up eye-watering fines, sometimes for very small incidents.

He said: “The cost is £154 an hour and you will be invoiced every three months during the investigation. You are not covered by your standard business policy and as this is one of the biggest concerns for clients at the moment you should seek advice. “The costs for a small company can potentially put them out of business if they can’t afford to pay them.”

Gary urged businesses that found themselves in that position to agree a payment plan with HSE.  Delegates were also told that HSE sentencing guidelines introduced more than two years ago meant the level of fines a company faces for breaking the law is based on its turnover. In 2017-18 the average penalty for a business was £147,000, before the new guidelines that figure was around £10,000-£15,000.

Gary said: “Big companies are picking up eye-watering fines, sometimes for very small incidents.”

IT PAYS TO BE PREPARED

Plan, test, repeat.

  • Where are the holes in your health and safety systems? Fix them
  • Media management. Ensure you know who to contact in the event of a PR emergency
  • Establish an incident management team to deal with an issue
  • Protect accident investigation reports with legal privilege
  • Do not answer questions under caution without seeking legal advice

Gary Clifton, head of corporate clients at NFU Mutual Preston, said: “There are lots of action you can take and plan for: you can be prepared.

“Draw up a proper plan and test it. If you can, get outside eyes to look at it. And the sooner you can get the experts involved the better. Build that into the plan.”

MANAGING A MEDIA STORM

Vikki Woodfine stresses there is no “one-size fits all” approach to crisis communications.

However, she offers the following advice to businesses looking to manage any media storm that might follow an incident:

  • Be prepared
  • Move fast
  • Monitor continuously
  • Speak with one voice
  • Be transparent
  • Apologise
  • Build a strategy
  • Be human

WHAT’S YOUR STORY?

Businesses that find themselves involved in a crisis need to make sure they do all they can to protect their reputation from negative headlines and any social media storm.

DWF partner Vikki Woodfine told the delegates: “Your reputation is as important as protecting your legal issues. You want a business at the end of the day; you want your reputation to remain intact.”

However, in the world of social media, where “everyone thinks they are journalists” and can post pictures and videos of incidents online even before the arrival of emergency services, that is becoming increasingly difficult. And that means that companies have to think beyond traditional media when it comes to their communication strategy.

Vikki said: “Social media means your reputation can be damaged in a very short period of time if the crisis is not handled immediately and correctly. You have to have a plan in place before the worst happens.”

She added that managing communications both internally and externally is a crucial part of dealing with any incident.

Your reputation is as important as protecting your legal issues. You want a business at the end of the day.

And that could mean drafting in specialist crisis management PR experts to handle things correctly and professionally. Vikki said: “You have to be pro-active; no-one wants to tell your story positively.”

She stressed that when dealing with the media, businesses should show empathy with people affected by any incident. Don’t hide behind words that are meaningless, she added, and it is okay to be apologetic.

Vikki also added that businesses also need to look at their internal communications and ensure that staff are being kept up to date, while making it clear that the information that they are being given shouldn’t be shared outside the organisation.

KNOWING YOUR RIGHTS

Businesses that are involved in an HSE investigation need to be aware of all their legal rights and protections.

That includes ‘shield of legal privilege’, which protects confidential communications between lawyers and their clients for the purposes of giving or obtaining legal advice.

Delegates to the NFU Mutual workshop heard that information and documents subject to legal privilege are protected from disclosure and the HSE cannot demand that they are handed over.

Gary Smith of DWF said it was important that businesses looked to ensure that their internal accident investigation reports were covered by that privilege and to take legal advice to achieve that as soon as possible. He said: “The overarching theme when it comes to an HSE investigation is not to be scared.”

Vikki Woodfine told the workshop that it was also important that companies had written evidence and records of their health and safety procedures. That way they could prove to HSE investigators the work they had carried out and measures they had put in place. She warned: “If it wasn’t written down it didn’t happen.”

The workshop also heard about enforcement and prohibition notices that the HSE can issue and the severe impact they can have on the business. Gary told the delegates: “Just because you are served a notice doesn’t mean you have to accept it. If you think it is flawed you can appeal it to an employment tribunal.”

The workshop also heard that it was important to get legal advice if asked to answer questions under caution.