The role of insurers in supporting insureds through HSE investigations: dos and don’ts

Health and Safety Executive (HSE) investigations can be disruptive, high-stakes events for insured organisations – particularly where a serious incident has occurred, or where criminal enforcement is likely. For insurers, these situations present not only a potential cost/liability exposure, but should also be seen as  an opportunity to gain commercial advantage by adding real value to their services by supporting insureds through what can be a complex legal and regulatory process.

Handled carefully, an insurer’s involvement can make a significant difference to the outcome of an investigation and the management of reputational and financial risks. This article offers practical guidance on what insurers should – and should not – do when their insured is subject to an HSE investigation in Scotland.

Understanding the HSE Investigation Process

HSE investigations in Scotland can begin following an incident, complaint, or regulatory concern. Where there is a fatality or injury, the matter may be reported to the Crown Office and Procurator Fiscal Service (COPFS), who have the authority to prosecute health and safety offences and to decide on whether a Fatal Accident Inquiry is required. The HSE investigation may include:

• Requests for documentation,
• Witness interviews (often under caution),
• Site inspections and evidence gathering,
• The potential for enforcement notices or prosecution.

In addition to  civil claims, the insured may be facing criminal liability either at an organisational or individual (director/manager or even employee) level. The stakes are high: reputational damage, substantial fines, and in some cases, custodial sentences.

Why Early Legal Involvement Matters

One of the most critical interventions which is often overlooked is the early appointment of specialist legal representation. Legal support can ensure:

• Interviews are handled appropriately (especially those under caution)
• Legal Privilege is appropriately preserved in internal investigations
• Communications are strategically managed
• There is no inadvertent admission of liability or regulatory breach

Insurers who encourage and facilitate early legal input help to contain the situation and may prevent missteps that increase eventual exposure. Where legal expenses coverage exists, clarity on appointing solicitors and agreeing budgets early is essential.

DOs and DON’T’s for Insurers

DO: Encourage Early Notification and Dialogue

Prompt reporting allows for better coordination. Many policies require immediate notification of regulatory investigations or potential prosecutions. Early involvement enables insurers to assess exposure and coordinate legal strategy effectively.

DO: Support Insureds with Access to Legal Expertise

Insureds may not have in-house legal teams experienced in regulatory criminal defence. Proactively offering access to a panel firm or recommending experienced solicitors can make a significant difference to both the journey-time of the investigation and its consequences.

DO: Clarify Policy Coverage and Rights

Investigations often raise questions around what is covered, particularly when individuals (e.g. directors) are involved. Clear and prompt guidance on the extent of coverage helps build trust and avoids later disputes.

DON’T: Attempt to Influence the Defence or Statements

Insurers should avoid giving advice on how to respond to regulators or influencing factual accounts. Doing so can create conflicts of interest, risk tainting the insured’s defence, or jeopardise privilege.

DON’T: Delay or Deny Support Based on Uncertainty

It may not be immediately clear whether the incident will lead to enforcement action. However, delaying support until prosecution is confirmed can leave insureds exposed to unwittingly self-incriminate and create greater liabilities later.

For example, insurers should not take comfort from any comments made to insureds by Reporting Agencies or the Police which suggest that enforcement action won’t occur or is unlikely. Such a decision is for the Crown Office and Procurator Fiscal Service to make. In our experience, most prejudicial acts or omissions are made by insureds who, understandably perhaps, have relied upon these apparent assurances.

Protecting the Insurer’s Position

While supporting the insured, insurers must also protect their own interests. This includes:

• Reserving appropriately, recognising the potential for Fee For Intervention exposure (where appropriate), defence costs, or even civil follow-on claims
• Ensuring that appropriate protections are put in place when instructing loss adjusters to investigate or experts to provide reports in so far as Legal Privilege is concerned to avoid having to disclose to the Crown against the insured’s interests
• Being clear about any coverage limits or exclusions that may apply (e.g. fines or wilful misconduct/breach of the insurance contract by the insured)

Conclusion

HSE investigations can be stressful and uncertain periods for insureds, particularly where criminal enforcement is a possibility. Insurers have an important role to play – not only in providing financial cover, but also in guiding insureds through the process with clarity and reassurance.

By encouraging early engagement with legal support, maintaining clear lines of communication, and balancing support with sound risk management, insurers can help their insureds navigate these situations more quickly and confidently while protecting their own position.

This collaborative approach not only strengthens the insurer–insured relationship but often contributes to more efficient and better-managed outcomes for all involved.

Managed appropriately, it can also serve as a useful tool to improve risk profile of the insured or even their sector as compliance gaps can be confidently identified and rectified future-proofing the business or sector from future incidents/investigations. Taking a longer-term approach to risk management may involve using the incident as a learning opportunity and providing training and advice.

BTO regularly provide this after the event compliance training to improve the risk profile of organisations large and small.