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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. Call our health and safety lawyers on 01206 217312.
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:
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.
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:
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:
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.
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 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.
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:
On an appeal, the Employment Tribunal can do the following:
If you or your business needs legal advice relating to HSE enforcement action, contact our health and safety lawyer, Tej Thakkar, on 01206 217312.
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