Unsurprisingly, most businesses do not normally look forward to an inspection or an investigation by inspectors of the Health & Safety Executive. Hopefully, the visit (whether planned or not) will go smoothly and lead to the inspector signing off a clean bill of health. Occasionally, however, it can flag actual, or potential, breaches of health and safety law. At this point, the inspector has two options: either to address the issue informally by offering advice (verbally or in writing) or alternatively to take enforcement steps.
In many cases when formal action is required it may be sufficient for the inspector to issue a formal warning letter (e.g. issuing a Notice of Contravention) to the duty holder. The inspector will explain the health and safety laws that have been broken (material breaches) and will expect any remedial actions to be rectified in relatively short order. The Health and Safety Executive will, however, attempt to recover the costs they have incurred during the visit, by way of the Fee For Intervention.
On occasions when matters are more serious, the inspector may decide to intervene and serve an enforcement notice (either an improvement or prohibition notice).
For employers attempting to work safely during the coronavirus pandemic, implementing social distancing and adhering to all government guidance will be essential. The Health and Safety Executive has already indicated that where employers are not taking the appropriate steps, enforcement notices may be issued.
In this article, Kevin Clancy highlights the key differences between improvement and prohibition notices and suggests what action recipients can take to best navigate the process.
The key differences between improvement and prohibition notices
Section 21 of the Health & Safety at Work Act 1974 states that an inspector is invested with the power to serve an improvement notice. This requires the duty holder to remedy the contravention identified by the inspector within a certain timeframe (a minimum of 21 days); put shortly, a marked improvement must be evident.
An inspector is entitled to issue an improvement notice if they believe a duty holder is contravening one or more of the relevant statutory provisions, and is likely to repeatedly do so. The inspector must clearly outline the specific changes required, as well as the time-frame during which this should be reasonably achieved so that a business fully understands what is expected. While this can sometimes result in considerable business expense, the notice details ought to be achievable.
Section 22 of the Act deals with the more serious type of enforcement notice (the prohibition notice). A prohibition notice will be served if an inspector believes that the activities being undertaken involve risk of serious personal injury. Like an improvement notice, the prohibition notice must clearly specify the defaults that have allegedly occurred. Unlike an improvement notice, however, it will prohibit the continuation of any offending activities until the issues are fully resolved. In short, the recipient of a prohibition notice must cease all specified activity. Within the prohibition notice, the inspector must justify their reasoning and specify the matters that pose a risk.
Next steps for recipients
Whichever type of notice is served, it is imperative that recipients take immediate action to comply with the notice and carry out the necessary investigations and/or remedial work. Failure to comply is in itself a criminal offence. If a recipient is successfully convicted, then this could result in a fine or imprisonment (or both).
Following receipt of a notice, it is beneficial to enter into a dialogue with the inspector. Should it become apparent that it is not going to be possible to (for example) comply with the improvement notice within the specified deadline, it is better to be open with the inspector in order to seek to agree future timescales, rather than fail to comply with the notice within the timescale and so commit a criminal offence.
It is also worth scrutinising the finer details of the notice as soon as it has been served. Recipients must make a swift appeal if they are unable to comply. It is possible to appeal an enforcement notice within 21 days of its issue. Notably, when an appeal is made, the 1974 Act suspends the improvement notice until the appeal has been determined by the Employment Tribunal. The effect of a prohibition notice can also be suspended pending the outcome of the appeal, but this is not automatic and requires the permission of the Employment Tribunal.
The recent case involving Chevron illustrates the importance of obtaining expert evidence and opinion in these situations, and the significant impact this can have on the overall success or failure of an appeal.
It is also important to consider the potential reputational damage resulting from these notices. The Health and Safety Executive maintains an online database of the issued improvement and prohibition notices, and the recipient’s name will be published on that website. Where reputational damage occurs, this may subsequently lead to difficulties in bidding and tendering for work.
Should you require support or advice in relation to any of the issues set out in this article, please get in touch with Kevin Clancy or your usual Shepherd and Wedderburn contact.