21st August 2018
HSE and Local Authority
Health and safety law places legal duties and obligations on all employers to ensure so far as is reasonably practicable, the health safety and welfare of employees. Additionally, an employer is also under a duty to ensure that non-employees, like members of the public or visitors to site are not exposed to a risk of harm by the way in which a business is conducted. The same duties apply to self-employed individuals and the way they conduct themselves.
These legal duties are monitored by the Health and Safety Executive (HSE) and Local Authorities (LA). By using a combination of inspections, advice, intervention through enforcement and prosecution, the HSE and LA seek to not only encourage compliance, but also to hold to account those businesses and individuals that fail to fulfil their legal duties and obligations.
What is HSE enforcement action?
The purpose of enforcement action is to make sure that legal duties and obligations are being complied with. One of the key tools available to the HSE and LA to ensure compliance with legal duties and obligations is the enforcement notice.
What is a Health and Safety Executive or Local Authority enforcement notice?
Under the Health and Safety at Work Act etc. 1974, Inspectors from the HSE and LA may issue enforcement notices against individuals and businesses that have, in the opinion of the inspector, failed to fulfil their legal duties. There are two kinds of notice, an Improvement Notice and a Prohibition Notice.
An Improvement Notice will be issued by an Inspector from the HSE or a LA where in his or her opinion a person or business is failing to fulfil a legal duty in relation to health and safety and that “Improvement” is required to ensure future compliance. In general, the Notice should set out on what evidence this opinion is based and what duty the business or individual has breached. 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.
How can an enforcement notice impact upon your business?
If you or your business is issued with an enforcement notice, it will be recorded against you and might be taken into account in any future regulatory investigation.
Having an enforcement notice issued against you might impact on your approval under contractor approval schemes or your chances of success if you are tendering for work, especially from public authorities and government bodies.
The fact that an enforcement notice has been issued is likely to raise your risk profile with the HSE or LA and may result in greater scrutiny and regulatory oversight.
Failure to comply with an enforcement notice is a criminal offence.
Prohibition Notices are a very serious sanction. A Prohibition Notice will be issued where an Inspector from the HSE or LA 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. Again, where a Prohibition Notice is issued, it will be recorded and in the case of the HSE, published in the HSE Public Register of Enforcement notices section on the HSE web site. A Prohibition Notice can literally stop a business in its tracks and will almost certainly have an immediate business continuity impact.
Appeal against an enforcement notices
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.
How we can help
At Cartwright King we can advise you on whether the enforcement notice appears justified and if correct due process and procedure was followed. Where necessary, we can draw upon our access to expert witnesses to boost your appeal against the Inspector’s decision to issue an enforcement notice.
We can help you to complete the necessary forms or complete these on your behalf. We will also represent you in the appeal process and walk you through each stage of the case before the Employment Tribunal. We can arrange for expert representation from one of our own in-house barristers or advocates, or the barrister of your choice and find and instruct an expert witness, where the case requires.
How to make contact
For a no obligation, confidential discussion about your situation please call us on 0808 168 5550 or email Andrew Brammer is the Head of the Health and Safety and Regulatory team and can be contacted below.
We can represent you wherever you are based and we can meet you away from our offices. Cartwright King has offices in Birmingham, Bedford, Bolton, Derby, Leeds, Leicester, London Temple, London Fleet Street, Luton, Manchester, Middlesbrough, Milton Keynes, Newcastle, Northampton, Nottingham, Oxford, Sheffield and Worcester.
You can always call us on 0808 168 5550 or email email@example.com
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