All businesses have a duty of care to make sure relevant health and safety regulations are complied with.
To ensure that employers are abiding by these duties, the Health and Safety at Work etc Act 1974 gives Health and Safety Executive (HSE) and local authority inspectors extensive investigative powers.
HSE inspectors’ powers include the ability to:
- Enter premises;
- Interview employees;
- Obtain witness statements;
- Take photographs; and
- Remove and destroy any machinery felt to be dangerous.
The HSE stress that the primary purpose of HSE enforcement is to prevent issues before they arise; however, inspectors will also enforce the law where it is being deliberately flouted.
There are two types of health and safety inspector: HSE inspectors and environmental health officers from the local authority. Both have exactly the same powers when it comes to inspecting workplaces and serving enforcement notices, so please note that the guidance in this article also applies to EHO-regulated premises.
Inspectors also have the power to issue HSE enforcement notices to prevent and/or stop unsafe workplace activities. HSE enforcement policy will typically apply when health and safety breaches are serious in nature and pose a significant risk to workers or the public.
There are different types of notices that investigators can serve, ranging from a written warning requiring you to terminate a particular practice to notification that you’re facing criminal prosecution. Typically, if a breach is found, you will be served with either an improvement notice or a prohibition notice.
Let’s take a look at what each of these health and safety notices mean and how you should respond.
If you’re found to be in breach of health and safety law, HSE inspectors may issue an improvement notice ordering you to undertake modifications. This gives you the opportunity to correct the shortcomings discovered by the regulator to prevent further action being taken.
A HSE improvement notice will:
- Set out what you’re doing (or not doing) that puts you in breach of health and safety law;
- State what needs to be done to correct the breach and why;
- Specify the time you have (at least 21 days) to comply with the requirements of the notice.
Before serving you with an improvement notice, the inspector must discuss the breaches with you and answer and resolve any queries you may have.
Ignoring health and safety notices will not mean that the situation goes away. You must always comply with an improvement notice, as failure to do so can result in criminal prosecution.
The risks of failing to respond
Beverley-based glamping pod manufacturer Glamping Cocoon Ltd and its director were collectively fined £32,640 after they ignored a series of improvement notices relating to the assessment of noise exposure.
The company had been made subject to an unannounced health and safety inspection as part of a targeted campaign of the woodworking sector. After finding that the company fell below safety standards, the HSE issued four improvement notices, two of which remained outstanding months after the expiry deadline, despite three extensions and attempts by the HSE to work with the company to support improvements.
The company and its director were found guilty of breaching the Health and Safety at Work etc Act 1974.
The case highlights the importance of obtaining competent advice from a Health & Safety specialist to ensure your practices comply with legal standards, thereby preventing HSE enforcement. It is also a reminder to employers that it is far better to engage with the HSE than to disregard improvement notices, as the latter is likely to land you with a hefty fine.
If an inspector feels an activity poses a risk of serious personal injury, you may be issued with a prohibition notice. This is a requirement to prevent a certain practice or event reoccurring.
There are two forms of HSE prohibition notice:
- An immediate notice – this stops the activity immediately until the specified risk is reduced; and
- A deferred prohibition notice – this stops the activity within a specified time limit.
Typically, prohibition notices will require an activity to be stopped immediately, and to not recommence until corrective action has been taken.
The notice will explain why the inspector believes there is a risk of serious personal injury and should:
- State that the inspector is of that opinion;
- Set out the matters which, in the inspector’s opinion, give (or may give) rise to risk; and
- Stipulate that the activity should not be carried out until matters have been rectified.
To help you to take remedial action, a prohibition notice should also clearly state:
- Which law is being (or is likely to be broken) and
- What needs to be done to reduce or control the risk.
As with HSE improvement notices, failure to comply with a prohibition notice is a criminal offence, punishable by fine and/or imprisonment.
Appealing against HSE enforcement notices
If you believe an HSE enforcement notice has been issued unfairly, you have the right to appeal against it before an Employment Tribunal. Appeals must be made within 21 days, and information on how to appeal will be provided with the notice.
If successful, appealing a health and safety notice will allow you to either:
- Vary the terms of the notice; or
- Overturn the notice altogether.
Appealing an improvement notice will also suspend the notice until the appeal is heard.
There are five main grounds for appeal:
- The inspector interpreted the law incorrectly.
- The inspector exceeded any of the powers given to them under the HSWA.
- Breach of the law is admitted, but the proposed solution is not reasonably practicable
- The time allowed to comply is too short.
- Breach of the law is admitted but so insignificant that the notice should be cancelled.
When appealing a prohibition notice, the notice usually stays in force until the appeal is heard; however, it may be possible to apply for it to be lifted pending appeal.
Implications of HSE enforcement notices
Enforcement notices can significantly damage your reputation and compromise your ability to tender for work. Keep in mind that:
- Issued enforcement notices will appear in a public register and will be listed for 5 years.
- Companies and local authorities may be inclined not to deal with you if you have been issued with a notice.
Top tips when faced with HSE enforcement
1. Create the right impression. No matter how you feel about the inspection or its outcome, being polite and cooperative with the inspectors from the get go will prevent situations from turning hostile. Remember, being difficult or obstructive will likely make the process drag on further and may cause inspectors to scrutinise your practices further.
2. Don’t bury your head in the sand.
Choosing not to respond to HSE enforcement notices will only make matters worse, resulting in prosecution and a substantial fine. It will also reflect badly on you as an employer should the matter be brought to court. Conversely, engaging with the HSE will demonstrate that you are taking your health and safety obligations seriously and help you to resolve issues quickly and painlessly.
3. Don’t go it alone
Making sure your business receives the right day-to-day support is key to preventing enforcement action.
Guidance from an experienced Health & Safety Consultant will help you to navigate the process, from helping you to understand why you are suspected of breaching legislation to working with you to put things right. This will not only take the pressure out of what can be a stressful situation, but will also help you to achieve the best possible outcome for your business, quickly.
In 2018, health and safety regulators issued a total of 14,000 enforcement notices. At Ellis Whittam, we reduce the risk of being served with an enforcement notice by 60%, as compared to the national average. Find out how here or get in touch on 0345 226 8393 to discover how our fixed-fee support can help to protect your business against the risk of enforcement.