Dancing with the Devil - When an Inspector Calls

 If you have ever watched a crime drama, you probably already know you “have rights” and that key amongst them is the right to remain silent.  So, what should you do if a Labour or Worksafe enforcement officer visits your place of business for a “quick look around”.

Both the Health and Safety at Work Act and the Employment Relations Act create certain obligations for employers (see my earlier blog post The Devil In The Detail for some thoughts about the Labour Inspectorate’s activities).  They also both have an enforcement regime – simply put, a provision for officers, with certain powers, to investigate and impose penalties for breaches – a specialised ‘police’ force. 

Both Labour and Health and Safety inspectors have broad powers to enter workplaces, view information or things, talk to employees and take certain evidence.  This may occur following an incident (in the case of Health and Safety matters), or it may occur without any warning. 

It is important at the outset to deal with the misconception that the right to remain silent extends to questioning by one of these specialist inspectors – both statutes require employers/persons conducting a business or undertaking to provide certain information, and it is a further offence to fail to do so.  However there is a right to refrain from providing information which may incriminate, and this is a fine line to draw.

The best advice is to seek specific legal advice before any discussion with an inspector.  You should remember that all information given to an inspector, even if it is a comment made in passing, may be recorded and used as evidence in court, so it is a good idea have some support in the process.  In the meantime, some pointers:

• The Health and Safety at Work Act creates an obligation to report accidents where there has been serious harm.  The Health and Safety inspectorate is also frequently notified by Police or Ambulance when emergency services are called. 

• It is an offence under the Health and Safety at Work Act to interfere with an accident scene where there is an obligation to notify Worksafe, expect to the extent required to make people safe. 

• Labour and Worksafe inspectors have the right to access the workplace, usually in an unhindered manner.

• Inspectors have the right to request documents you are required to hold by law – time/wage records and employment agreements are key examples. 

It is frequently said that the innocent have nothing to fear in the face of a legal enforcement officer, and this is true to a large degree.  However it is possible that the enforcement officer is looking for something other than what you assume, and in cases where judgment must be exercised (eg an evaluation of reasonably practicable under the Health and Safety at Work Act) fine differences can have some significance.  If nothing else, encountering an enforcement officer can be bewildering and a little intimidating, so having someone on your side can be helpful.  The best advice is get advice.