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May 13, 2010

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Health and safety enforcement notices explained

Nick McMahon explains the differences between types of enforcement notice, the consequences of each, and what can be done if you believe a notice has been served without good grounds.

Enforcement notices are a familiar and well-trusted tool for the Health and Safety Executive and other enforcement agencies. For the regulator, they provide a useful means by which companies and individuals can be controlled quickly, and perceived risks to safety eliminated, or reduced without recourse to the courts. For those on the receiving end, the consequences of being served with a notice are significant, and should be taken extremely seriously.
The concept of enforcement notices was introduced in the Health and Safety at Work, etc. Act 1974 – Improvement Notices under s21 and Prohibition Notices under s22. Although at the time of their introduction it was anticipated that the former would be used most commonly, recent statistics published by the HSE appear to show it uses Prohibition Notices in roughly 40 per cent of cases. In 2008/09, the HSE issued 4816 Improvement Notices and 3238 Prohibition Notices. A total of 14,427 enforcement notices overall was served in that period by the HSE, Local Authorities and the Office of Rail Regulation.
Improvement Notices
These require the recipient to do something – to take a positive step to remedy a health and safety deficiency perceived by the inspector. Section 21 empowers an inspector to issue an Improvement Notice if, in the inspector’s opinion, there is contravention of a health and safety statute or regulation, or circumstances make it likely there will be a breach in future.
The notice must indicate with clarity the statute or regulation concerned, and details of the inspector’s reasons for serving the notice. It must set out sufficiently clearly what it is expected to be done to remedy the matters in question, within a period of compliance of no fewer than 21 days. While these steps may well be rigorous, or involve expense, they must be attainable within that period.
The example given in the HSE’s enforcement guide is that an Improvement Notice might require a guard on a piece of machinery but it cannot make an ongoing requirement of maintenance. However, the notice could require that a proper system of maintenance be put in place by a specified date.
The compliance period can be extended (s23(5)(b) HSWA 1974), and the HSE guide to enforcement encourages inspectors to work with recipients to reach understanding as to how to comply. Further guidance can be offered, although not as part of the notice itself. There is an opportunity for the recipient to make representations during the compliance period, which may lead to withdrawal of the notice, or at least modification (see s23(5)(a) and (b) HSWA 1974).
There is a right of appeal (see below) and, if an appeal is made, the automatic effect is to suspend operation of the notice until the outcome of the appeal, whatever that may be.
Prohibition Notices
These require a recipient to stop an activity. Although such notices will usually concern a breach of health and safety legislation, this will not necessarily be so. An inspector is empowered to issue a Prohibition Notice where he or she believes that the activities concerned involve, or will involve a risk of serious personal injury.
As with Improvement Notices, a Prohibition Notice must specify the reasons for the inspector’s belief. If applicable, it must also specify the relevant legislation that, in the inspector’s opinion, is being, or will be breached.
Notices can and usually do take immediate effect, although there is power to defer the effect of the notice for a certain period, if ceasing an activity immediately would create more of a risk than an orderly cessation. In practice, deferral is rare; of the Prohibition Notices issued by the HSE in 2008/09, fewer than 1.5 per cent were deferred.
Get a move on
Whatever the form of the notice received, the recipient must act promptly. Failure to comply with a notice is a criminal offence under s33(1)(g) HSWA 1974, punishable by a fine and/or imprisonment of up to £20,000/six months if convicted in the Magistrates’ Court and unlimited/two years if convicted in the Crown Court.
If allowed to stand, enforcement notices, whether Prohibition or Improvement, will be published against the recipient’s name on the HSE website. This information will remain in the public domain for at least five years. The existence of such a Notice is a matter to be declared at certain key points – for example, when bidding for new business, or renewing liability insurance. In the event of any future prosecution, a Prohibition or Improvement Notice will be treated as an aggravating feature. While it might be possible to mitigate the reputational effect of the existence of a notice, it cannot be merely ignored.
Given the gravity of these consequences, coupled with the often very short time that an inspector will have available before issuing a notice, a recipient may feel aggrieved if it is considered that the notice has been issued prematurely. For this reason, a number of devices exist within the regulations to protect both sides – inspectors on the one hand, and businesses on the other.
For example, an inspector will not be exposed to any sanction where his or her decision is based on incomplete information. Inspectors are given a large degree of discretion, for the understandable reason that protection of safety is the main concern, and the law is consistent with this. In the decision of Harris v Evans [1998] 1WLR 1285, a claim for damages in respect of a negligent mis-statement by an inspector was dismissed.
In the case of an Improvement Notice, as indicated above, the recipient has the compliance period (21 days or more) in which to persuade the enforcement agency that the Improvement Notice is not warranted. This would allow, for example, an opportunity to provide an inspector with documents not previously seen, or to discuss further information about management of risk within a particular activity, so as to ease their concerns.
If a Prohibition Notice is deferred, there is scope for this to be withdrawn before it takes effect, in which case it will not make it on to a recipient’s health and safety record. Where an immediate Prohibition Notice is served, however, statute does not permit its withdrawal, even if, on reflection, the inspector agrees with representations from a recipient (see s23(5) HSWA 1974).
In such circumstances, the only remedy available to the recipient intending to challenge a Prohibition Notice is to appeal.
Appeal issues
If an appeal is served in respect of an Improvement Notice, the mere fact of the appeal will suspend the notice until the appeal has been determined (s24(3)(a) HSWA 1974). There is no such provision concerning appeal of a Prohibition Notice, however, which will remain effective until overturned or modified. The statutory route for an appeal is via the Employment Tribunal (s24(2) HSWA 1974), and the Tribunal is empowered to award costs to the successful party.
In 2009, the judicial approach to considering appeals altered in the case of Chilcott v Thermal Transfer Limited [2009] EWHC 2086 (Admin). Prior to that decision, the test adopted was simply that a notice would be upheld if the appeal tribunal considered an inspector’s opinion to have been genuinely held and based on reasonable grounds, even if he or she was not in receipt of complete information.
A different approach was taken in Chilcott. In that case the court decided that an Employment Tribunal, faced with an appeal, needed to focus on the point in time at which the Prohibition Notice was served, assess the risk at that point, and place itself in the position of the inspector to consider whether it would have served a notice at that time.
The effect of this was to enable the Employment Tribunal to consider the relevant method statement and plan of work, even though those documents had not, in fact, been available on the day of this accident.
So, in light of the Chilcott decision, there are greater prospects of appeal if recipients of notices consider themselves hard done by. This is not to say that notices will be easily overturned. The Tribunal has power on appeal to affirm a notice either in its original form, or such modifications as it thinks fit (s24(2) HSWA 1974). However, the Courts have now acknowledged a test allowing disgruntled recipients to put more information before the Tribunal than was previously the case.
Anyone receiving an enforcement notice should bear in mind the following points:
• Seek legal advice quickly – the time limit for an appeal or representations is • 21 days from service of a notice;
• On no account ignore the notice, whether or not you agree with it;
It is always good practice to try to engage with the enforcement agency concerned, to demonstrate cooperation and good intention. To do so at an early stage may help persuade an inspector against controlling your activities where you have a satisfactory health and safety story to tell, or at least help you understand the inspector’s concerns.
Nick McMahon is a partner at Reynolds Porter Chamberlain LLP and spoke on this subject in the SHP Legal Arena at Safety & Health Expo on Tuesday, 11 May.

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