From Incident to Investigation: Protecting Your Insurance Position

Welcome back to our 2026 monthly series: “Responding to a safety incident – and beyond.” To help you navigate emerging questions and to guide discussion within your organisation, each month we are providing you with practical advice on responding to a safety incident. This month we look at the role of insurance.

Major health and safety incidents can create immediate legal, reputational and financial exposure. Businesses are required to make critical decisions at pace – often before the extent and scale of exposure is fully understood. Insurance is a key strategic issue during this period: decisions taken in the aftermath of incidents can determine whether cover is preserved, compromised or lost entirely – with significant financial consequences.

DO: Identify potentially responsive policies

The starting point is to identify any insurance policies that could be engaged. This is often wider than you think.

Relevant policies may include directors’ and officers’ (D&O) insurance, professional indemnity insurance, public liability insurance, employee liability insurance, cyber insurance, and legal expenses or investigation costs extensions. Many policies may respond not only to formal ‘court’ proceedings, but also to investigations themselves – including interviews under caution, statutory information requests, regulatory or internal investigations.

Importantly, cover may be triggered even where allegations are directed primarily at individuals rather than the corporate entity.

DON’T: Assume cover will trigger automatically

Insurance cover does not operate on autopilot. Most policies that respond to investigations are written on a claims-made basis, meaning that notification obligations are strict and timing is critical.

Failure to notify an insurer promptly – or in the correct form – can give rise to coverage disputes or rejection, including refusal to advance defence costs. Policies frequently require notifications not only of claims, but also of circumstances that may give rise to a claim.

DO: Notify early – but carefully

Early notification is often required to preserve rights under a policy and unlock funding. Notifications should be factual, measured and consistent with the investigation strategy.

Care is also required to ensure consistency between insurance notifications, regulator engagement and any broader self-reporting or cooperation strategy.

A coordinated approach between investigations lawyers, insurance specialists and insurance brokers is critical at this stage.

DON’T: Disclose privileged material without a strategy

Insurers can seek further information, including interview notes, internal investigation findings or legal advice.

Providing privileged material to insurers can result in a waiver of privilege, potentially exposing sensitive material to third parties, including prosecutors or regulators. While limited waiver arrangements may mitigate some risk, they require careful drafting and do not eliminate all possible repercussions.

DO: Understand how investigation/defence costs will be funded in advance

One of the most valuable aspects of insurance during an investigation is the potential funding of defence costs. Understanding these provisions early, and aligning them with the anticipated investigation strategy, helps to avoid cash-flow issues, disputes with insurers and misalignment between legal strategy and funding reality. Critically, however, keep in mind that cover invariably requires that the insurers consent to costs being incurred in advance.

DON’T: Treat insurance as an afterthought

Insurance is not simply about who pays the legal bills. Early, informed engagement with insurance can preserve cover, protect individuals, and reduce the risk of uninsured exposure at precisely the moment when the pressure on the business is the greatest.

Conclusion:

Once an investigation begins after a health and safety incident, insurance becomes a live and strategic issue. Businesses that engage with it early, carefully, and in coordination with their wider response are better placed to protect individuals, preserve privilege and manage financial exposure at a time of acute pressure. 

If you would like any advice or support in dealing with insurance, please do not hesitate to contact with Matthew Kaltsas-Walker at [email protected], or Kate Francis-Hughes, [email protected].