A visit by a regulator such as the Environment Agency or the Health and Safety Executive can be daunting for employers to deal with. Staff will often have little knowledge of the powers that regulatory bodies have and may be torn between what their managers instruct them to do and what the inspecting officers require.
In a recent case the appeal court was asked to consider the actions of a number of Southern Water employees who had been convicted of obstruction during various site visits by the Environment Agency. The Environment Act 1995 provides extensive powers to Environment Agency officers when carrying out their functions including;
- A requirement for persons to answer questions put by the officers and to sign a declaration confirming the truth of such answers,
- A requirement to produce documents and records and the power to take copies of such documents,
- A requirement to provide such facilities and assistance as may be necessary
The legislation also makes it an offence for any person to obstruct an officer or fail to comply with any of the requirements above.
In the case of the first employee, she had been instructed by the company’s legal team to prevent the Environment Agency officers from taking documents. Whilst she communicated this to the officers, she did not physically prevent them from taking the documents. The conviction was quashed as, whilst the court accepted that an offence can be committed by omission as well as a positive act, this was only if the individual was under a duty to act which this employee was not.
The second employee was present at two visits at two different sites and communicated to the Agency’s officers that he had been instructed that no documents were to be removed and that the company’s solicitor should be present. He requested the officers to leave but allowed them to bag exhibits. The employee’s conviction for obstruction was quashed as the court concluded that he was merely communicating the company’s position rather than implementing it.
The third employee was present on site when Agency officers asked to inspect the site diary. After they left the employee’s manager instructed the employee not to allow the officers back on site. He locked the diary in a cupboard and when the Agency officers returned the employee stopped them entering the site – the site gate was locked. The court concluded that this did amount to obstruction and the conviction was upheld.
On another visit, an employee told another to lock the site diary in a van which he did. The court concluded that this amounted to obstruction by both employees. One of the employees was asked questions by the Agency officers and answered some but then refused to answer further questions when the other employee told him not to. The court concluded that this was not obstruction as the Agency officers had not made it clear that the questions were being asked under statutory powers rather than simply asking for information.
It is very unusual for this type of case to be considered by the appeal courts and it gives an insight into the potential complex issues that employees may face when present during a visit or investigation by the Environment Agency. It is also worth noting that other regulators such as the Health and Safety Executive have very similar powers.
Our consultants have provided training to organisations on how to deal with regulatory inspections so that staff can deal confidently with inspecting officers. If you would like further information please contact one of our Regulatory Team.