If the Health and Safety Executive (HSE) or Local Authority forms the view that you are contravening a statutory provision, or that a breach is likely to continue or be repeated, they can issue an immediate Improvement Notice. If any continuing activity involves a risk of serious injury, a Prohibition Notice is more likely.
It's a serious issue for businesses. In 2009/10, 15,881 such Enforcement Notices (Notices) were issued in Great Britain.
Undoubtedly, the issue of such Notices is a more lenient method of enforcement than prosecution. Note, however, that the issue of a Notice does not preclude subsequent prosecution and, on any subsequent conviction, it may be taken into account to increase the level of fine imposed.
Financial consequences of a Notice
At present, the issue of a Notice doesn't have a direct financial penalty, although that may change after the conclusion of a current consultation on the topic. It does have indirect financial consequences though. Firstly, there is the expense of compliance and it is a criminal offence not to comply.
Less obvious perhaps is that these Notices are an enforcement action and do therefore form part of a company's publicly available "record." Companies have a duty to notify their insurers, which in turn may impact on their premiums. They may also have to disclose the existence of the Notice on tenders, particularly for work in the public sector. This may impact on future work.
Limitations on service
In part six of our series 'Have you got it covered? A survival guide to health, safety and other prosecution risks', we summarised the procedure, grounds and timescales for contesting Notices. That position remains unchanged.
However, since then, there have been some cases, most notably Chilcott v Thermal Transfer Limited , which suggest that the Employment Tribunal (ET), when hearing appeals against Notices, instead of just considering if the inspector's view was genuine and reasonable when deciding to serve a Notice, will scrutinise what he could have known at the time.
In Chilcott, principal contractors engaged subcontractors to erect platform steelwork. The platform steelwork was to remain as part of the final structure. A 'Task Specific Risk Assessment/Method Statement' (Method Statement) identified 'falling from height' as a hazard. This was to be managed by the erection of handrails which were to be fitted by operatives working from a protected mobile platform.
The principal contractor's site manager saw the subcontractor's supervisor working on the platform steelwork contrary to the Method Statement. The supervisor subsequently fell, fracturing both ankles.
The HSE issued a Prohibition Notice later the same day which, in summary, stated that work at height on the platform steelwork involved a risk of serious injury from a fall and that the work at height was not 'planned' to avoid the risk. He was not aware of the Method Statement at the time that he served the Notice.
The ET criticised service of the Notice as, "premature and excessive" and rejected the HSE's argument that the Notice was justified because of a lack of supervision on site. The ET dismissed this argument because lack of supervision was not referred to in the Notice. What the inspector had had in mind was that work at height must be 'planned' to avoid the risk of persons falling from height. Nobody had made any criticism of the plan that was in place. The tribunal rejected a plea by the HSE to amend the Notice, and cancelled it.
Other cases have since followed suit. The common theme has been that a Notice issued quickly and without knowledge by the inspector of the full facts, may be discharged if, with knowledge of those facts, the Notice served was not reasonable at the time it was served.
What can be done about Notices? The practicalities
Your best strategy is to avoid service of a Notice. But:
- If a serious accident or near miss occurs, don't wait to be ordered to make things safe. Be swift and proactive in carrying out a new risk assessment which benefits from the hindsight learned from the incident. Tighten up any controls or plans regarding how work is to be done. An inspector can't then claim you are currently contravening a statutory provision, or that you are likely to repeat a contravention and put anyone at risk.
- If served with a Notice, check its wording for technical/factual issues. Does it specify the regulation alleged to have been breached? Does the breach suggested actually put anyone at risk? Is there any other information the inspector didn't have when the Notice was served which might have affected his decision?
- If there are no grounds for objection, but you need more time to comply with a Notice, then negotiate. A revised Notice can be issued to enable you to comply and avoid commission of a criminal offence for non-compliance.
- Prohibition Notices cannot generally be withdrawn. If there are grounds to appeal, ensure the appeal is lodged within 21 days of service of the Prohibition Notice.
- Negotiate to get an Improvement Notice withdrawn before the time for compliance expires. If information was not available to the inspector at the time of his decision, but which may have influenced his view, then provide it to him. If you can remove any issue in the interim, it will reduce the chance of a revised Improvement Notice being issued. If this fails, an appeal must be lodged within 21 days of service of the Improvement Notice.
- Generally, the cost of an appeal to the ET is not recoverable. However, if there are reasonable grounds to appeal, consider offering to pay investigation costs if discharge of the Notice is agreed. If that doesn't succeed, that correspondence might give the ET sufficient cause to grant a costs order in your favour if your appeal is ultimately successful.