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Would your business survive a health and safety investigation?

  •  - By Forde Campbell’s Kathy Mathews

    When recent outbreak of listeria hit NHS Hospitals in England, food supplier The Good Food Chain quickly came under investigation. The outbreak allegedly resulted in the tragic deaths of nine people and the company voluntarily suspended production pending the outcome of the FSA-led investigation into the cause of the untimely deaths. 

    The FSA has recently announced that The Good Food Chain is no longer under investigation and according to a recent FSA update has reportedly turned its attention to a third party supplier. Despite no finding of wrongdoing on the part of The Good Food Chain in connection with the outbreak, the company has nonetheless announced that it has ceased trading and will be going into liquidation.

    The company founder said that whilst he welcomed the announcement from the FSA, "it ultimately came too late in the day for [The Good Food Chain] to get the business back on to a sustainable footing." The story of how the temporary suspension of production at The Good Food Chain ultimately put the company out of business and resulted in 125 people losing their jobs should be a warning to anyone in business to ask the question: Would your business survive a health and safety investigation?

    What were the legal obligations in this case?

    Agencies tasked with ensuring the health and safety of the public are under an obligation to thoroughly investigate threats to public health. Without a doubt, the moment a hazardous situation emerges, the immediate objective of the FSA and other public bodies is to find the source of the harm and contain the threat. Understandably, the prospect of reputational damage falls far down the list of priorities when public health is at stake.

    Whilst culpable organisations will correctly be held to account and expected to submit to the consequences of whatever actions or omissions are uncovered by an investigation, is liquidation an inevitable outcome in circumstances where an organisation is ultimately cleared of wrongdoing or can steps be taken to mitigate the collateral damage that will likely ensue as a result?

    Always co-operate with investigations

    The Good Food Company appears to have complied fully with the investigation and voluntarily ceased trading on June 5th, shortly after news of the outbreak came to light. No detailed findings have been released, although to all extents there seems to have been full transparency insofar as the company’s cooperation with the investigation was concerned.

    Fully cooperating with the investigating agency is key. Crucially, however, any reactive approach should be combined with a proactive level of awareness on the part of the company under investigation. So what pre-emptive steps can a company take to mitigate harm caused by third party investigations which are more often than not accompanied with intense media scrutiny?

     - Create and maintain a corporate risk register: The use of risk registers is becoming more widespread and is gradually being adopted by more and more businesses in pursuit of healthy corporate governance. The threats facing individual businesses will be distinct although several blanket fundamentals should typically be included, such as the use of ethical suppliers and ensuring that health and safety policies are not only in place but are also maintained regularly.

    Risk registers do not need to be scary and there are an increasing number of apps on the market which help organisations and their Board of Directors to actively observe good practice (such as The purpose of a risk register is to identify potential issues before they turn into problems

     - Have a social media policy in place: While the culture of an organisation will of course massively influence its employee’s online comments, company handbooks need to encourage staff to consider the consequences of work-related musings before they post them on social media

     - Get help to proactively engage with the media: PR companies can help to ensure that the company’s message is not drowned out by the clamouring negativity that often follows in the wake of revelations. Specialist media lawyers can also eliminate the distortion of facts, keep a lid on premature finger pointing and contain the dissemination of false and defamatory allegations

     - Do not ignore warnings: Given the myriad tasks facing businesses on a day to day basis it is tempting to do nothing when faced with potential threats in the hope that they never amount to anything. More often than not some cursory corrective action will prevent the threat becoming anything more than just that although left unchecked things can often move from bad to worse – at speed

     - Avoid using the “no comment” response: When responding to queries from the press or interested parties, if your information is not complete then by all means make that clear. Blanket refusals to engage may be counter-productive and can tend to imply culpability. Of course no two scenarios are ever the same and any public comments will need to be tailored to specific circumstances in order to ensure that the right message is accurately reflected.

    What could the company have done differently?

    As to whether The Good Food Chain could have done anything differently to guard against being forced to permanently shut its doors and see its loyal employees losing their jobs, we are presumably not likely to find out for certain and nor is it possible to apportion blame in the absence of the investigative findings.

    The question of "what if" is hypothetical and the answer no doubt nebulous. What is undeniably clear, however, is that whilst lawyers and PR experts can help companies navigate their way out of a storm, they are more likely to succeed when businesses have given thorough consideration to likely issues before they find themselves in the middle of one.

    Kathy Mathews
    Senior Associate
    Forde Campbell LLC

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