HSE Enforcement Action

The Health and Safety Executive (HSE) is the independent body liable for health and safety policy and is predominantly responsible for enforcement of this area of law in the UK. 

The HSE is accountable to the public for the decisions it takes and their implications. It has published standards and policies that it must adhere to. The HSE states that the purpose of enforcement is to:

1. Compel those with a duty to ensure the health and safety of others to take immediate action to deal with the risk of injury.
2. Promote sustained compliance with the law.
3. Ensure that where there has been a breach of health and safety requirements, the offender is held to account for that failure in responsibility.

The HSE has produced a policy on enforcement that sets out the four underlying principles it adopts in any enforcement process. These should be known, and referred to, certainly when making any representations to the regulators for or on behalf of those facing enforcement action.

1. Proportionality of response 
2. Targeted enforcement action 
3. Consistency of approach 
4. Transparency

The HSE can attend an organisation and inspect its premises and working practices for a wide range of reasons. For example, it could be following:

• random target inspections
• previous poor performance
• concerns it has received
• incident investigations
• an organisation notifying the HSE of a reportable incident (or if they have failed to comply with their duty to do so)

Once the HSE has attended and inspected the position, if they believe to have identified suspected breaches of HSWA or other applicable Regulations, they are likely to pursue a formal investigation. This can be a standalone process, or in conjunction with others. There are various ‘memorandums of understanding’ between regulators. Its purpose is to ensure effective collaborative working between these organisations where their duties for health and safety enforcement and accident investigation overlap. 

Section 20 of HSWA affords the HSE (or other regulatory authority) with a significant range of powers they can exercise during any investigation. Further, they have a range of enforcement methods at their disposal, all of which can have a grave impact on the organisation, its managers, and the ongoing business operations. Either during, or at the conclusion of, an investigation process, the HSE can:

• Provide information and advice, either verbally and/or in writing
• Issue a Notice of Contravention resulting in the authority issuing periodical invoices for the costs of their ongoing investigation
• Serve Improvement or Prohibition Notices
• Withdraw or vary approvals, licences, conditions, or exemptions that are granted
• Request a representative on behalf of the organisation (or someone in their personal capacity) to partake in a formal interview under caution
• Issue a simple caution
• Issue formal proceedings by virtue of a prosecution

Enforcement Notices

If you are served with an Enforcement Notice, and you fail to comply with its requirements you will be committing a criminal offence.

Having an enforcement notice issued against you might impact your approval under contractor approval schemes or your chances of success if you are tendering for work, especially from public authorities and government bodies.

If you or your business is issued with an enforcement notice, it will be recorded against you and might be considered in any future regulatory investigation. The fact that an Enforcement Notice has been issued is also likely to raise your risk profile with the HSE and may result in greater scrutiny and regulatory oversight.

Improvement Notice

An Improvement Notice may be issued by an Inspector from the HSE or a local authority where, in his or her opinion, a person or business is failing to fulfil a legal duty in relation to health and safety, or is likely to fail (no actual breach required) - and that “Improvement” is required to ensure future compliance. 

In general, the Improvement Notice should set out on what evidence this opinion is based and what duty the business or individual has breached or will be believed to breach. It may also set out what action is required and by what date. Failure to comply with an Improvement Notice is a criminal offence and can result in unlimited fines or a prison sentence.

Prohibition Notice

Prohibition Notices are a very serious sanction. A Prohibition Notice will be issued where an Inspector from the HSE or Local Authority is of the opinion that an activity being carried out, or likely to be carried out, involves a risk of serious personal injury if continued. It ultimately brings the activity in question to an end unless any specified conditions have been met. 

Appeal against an Enforcement Notice

A person or business on whom an Enforcement Notice is served can appeal against that Notice. An appeal against an Enforcement Notice is heard, oddly enough, in the Employment Tribunal. Notification of an appeal against an Enforcement Notice must be made to the Employment Tribunal within 21 days of the date on which the Notice was served on its recipient.

In the case of an Improvement Notice, appealing against the Notice has the effect of suspending its operation until the appeal is determined or withdrawn. In respect of a Prohibition Notice, lodging an appeal does not automatically suspend the operation of the Prohibition Notice. Suspension may be achieved if the Employment Tribunal so directs, and only after a specific application is made by the person or business bringing the appeal.

Whether a company should appeal a notice remains a key decision. Both types of Notice will remain on a company’s record and may have to be declared in tenders (if asked – in view of competence and capability). In addition, they can be brought up in future proceedings as evidence of a history of non-compliance. 

If a company does not accept the contents of a Notice served on it, appealing should be given real consideration. The grounds of appeal can include:

• The Enforcement Notice is not justified. For example, if there is no actual breach or risk of any such breach;
• That the Notice ought to have been served on another party; and/or
• The terms are vague and or otherwise unreasonable.

On an appeal, the Employment Tribunal can do the following:

• On application, pending the outcome of the appeal, suspend or modify the provisions of any prohibition
• Dismiss the appeal 
• Modify or quash the enforcement notice