The HSE has many significant powers that it can use to ensure workplace safety. Two of its main weapons against danger in the workplace are the improvement and prohibition notices. Failure to comply with these can lead to legal action and very large fines indeed.
Case study:
Company and general manager fined after safety failings
A company and its general manager have been fined for failing to maintain health and safety standards at work after multiple improvement notices were issued.
The company failed to maintain suitable standards of work after several inspections by the HSE. The company had received six previous improvement notices and written advice. It had initially complied with these notices but then failed to maintain standards.
A subsequent HSE inspection visit resulted in three Prohibition Notices and four Improvement Notices. The inspection found the company should have adopted standards identified in previous inspections and not allowed them to lapse.
The company pleaded guilty to breaching:
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Regulation 7 (1) of The Management of Health and Safety at Work Regulations 1999
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Regulation 5(1) of The Control of Noise at Work Regulations 2005
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Regulation 11(1) of The Control of Substances Hazardous to Health Regulations 2002
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Regulation 11(1) (B) of Provision and Use of Work Equipment Regulations 1998
The company was fined £40,000 and ordered to pay costs of £4,000.
What are enforcement notices?
Enforcement notices are tools that are used by the HSE when dealing with health and safety violations. They come in two forms – improvement notices and prohibition notices. Recent statistics show that the HSE uses Prohibition Notices in roughly 40 per cent of cases.
What is an Improvement Notice?
If you have a visit from the enforcing authority and are issued with improvement notices, it is a formal warning to you that your systems or procedures are inadequate.
An Improvement Notice means that you must take positive steps to put right something that the inspector has spotted being done dangerously or incorrectly.
What should be on the Improvement Notice?
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The law or regulation concerned
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Details of the inspector’s reasons for serving the notice
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What has to be done to remedy the matters in question
These steps must be attainable within the 21-day deadline for action.
It will normally be in your interest to work with the enforcing authority and comply with the notices.
It’s possible, following discussion between the company and the inspector, to extend the compliance period.
What is an Prohibition Notice?
If you receive a Prohibition Notice, it means that you must stop the activity to which it refers at once.
Prohibition Notices usually refer to a breach of health and safety legislation. An inspector will issue a Prohibition Notice if the activities involve a risk of serious personal injury.
What should be on the Prohibition Notice?
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The law or regulation concerned
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Details of the inspector’s reasons for serving the notice
There are two types of Prohibition Notice – deferred and immediate. The latter is far more common than the former.
A deferred notice can be withdrawn before it takes effect and won’t appear on the company’s health and safety record, but an immediate one can’t be withdrawn, even if the inspector later changes their mind when presented with the company’s representations.
If an immediate Prohibition Notice has been issued, the only course of action left to the company that has received it is to lodge an appeal.
How to react to an enforcement notice
When you receive an enforcement notice, you need to act quickly. If you don’t, you could be in serious trouble – not complying with an enforcement notice is a criminal offence and you could be looking at a fine and/or imprisonment of up to £20,000/six months if you’re convicted in the Magistrates’ Court. If you’re convicted in the Crown Court, you could be looking at an unlimited fine and/or two years in prison.
You are very unlikely to be insured for any fine you may receive and it will come out of your turnover.
Enforcement notices that are allowed to stand will be published on the HSE website and remain in the public domain for at least five years. This means that anyone who wants to find out about your company’s safety record (for example, a main contractor) will discover any enforcement notices that have been made against you. It will also count against you when you want to renew your liability insurance. If you attract the attention of the enforcement agencies in the future, a standing enforcement notice will count against you in any prosecution.
How to appeal to an enforcement notice
As soon as an appeal is made, the Improvement notice is suspended until the appeal has been resolved.
That doesn’t apply to a Prohibition notice as this will stay in force until it has been overturned or modified.
Appeals are usually made via an Employment Tribunal.
What to do if you receive an enforcement notice
If you receive an enforcement notice, you should:
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seek legal advice quickly – you only have twenty-one days to lodge an appeal or make representations;
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not ignore it, regardless of whether you think it’s justified or not.
Contacting and engaging with the enforcement agency that’s issued the notice will show that you intend to co-operate with them. This may count in your favour.
The earlier you make contact, the more likely it is that an inspector may decide against further controlling action. You will have a chance to put your side of the story and understand what has caused the inspector to take that action.