HSE improvement notices, prohibition notices and prosecution

How health and safety law is enforced

Health and safety law is enforced by the Health and Safety Executive (HSE) and local authorities. Which one enforces depends on your business type. HSE enforces in construction, manufacturing, factories, farms, chemical plants, railways and offshore installations. Local authorities enforce in shops, offices, pubs, clubs, hotels, care homes, leisure facilities and warehouses.

Inspectors can visit your workplace without notice. They have extensive legal powers under Section 20 of HASAWA.

Inspector powers

HSE inspectors have broad powers to investigate and enforce health and safety law:

• Enter premises at any reasonable time, or at any time if there is danger
• Make examinations and investigations
• Take measurements, photographs and recordings
• Take samples of articles and substances
• Dismantle or test equipment or articles that appear dangerous
• Take possession of articles for examination or evidence
• Require documents to be produced for inspection
• Question any person and require them to sign a declaration of truth

Answers given to inspectors cannot be used as evidence against the person who gave them, but obstructing an inspector is a criminal offence.

Improvement notices

An inspector may serve an improvement notice if they believe you are contravening health and safety law, or have done so in circumstances likely to continue or repeat.

What an improvement notice contains:

• The inspector's opinion about the contravention
• The specific legal provisions being breached
• The reasons for the opinion
• A deadline for remedying the contravention (minimum 21 days to allow for appeal)

What you must do:

Remedy the contravention by the deadline specified. Failure to comply is a criminal offence punishable by imprisonment and/or an unlimited fine.

Prohibition notices

A prohibition notice is more serious. An inspector may serve one if they believe an activity involves, or will involve, a risk of serious personal injury.

Key features:

• Can take effect immediately if the notice declares this
• Stops the specified activity until the risk is remedied
• May be served even if no law is being broken, if the inspector believes there is imminent danger

Critical difference from improvement notices:

A prohibition notice can stop your work straightaway. There is no waiting period. If you continue the prohibited activity, you commit a criminal offence.

Appealing against notices

You can appeal to an employment tribunal against either type of notice.

You must lodge your appeal within 21 days of the notice being served.

Appealing against an improvement notice suspends it until the appeal is decided or withdrawn. Appealing against a prohibition notice does not suspend it: you must apply to the tribunal for a direction suspending it, and the tribunal decides whether to grant one.

The tribunal can cancel the notice, affirm it in its original form, or affirm it with modifications.

Criminal offences and penalties

Breaching health and safety law is a criminal offence. Under Section 33 of HASAWA, it is an offence to:

• Fail to discharge duties under sections 2-7 of the Act
• Contravene health and safety regulations
• Fail to comply with an improvement or prohibition notice
• Obstruct an inspector
• Make false statements or forge documents

Penalties

In the Crown Court, you face up to 2 years' imprisonment and an unlimited fine. In the magistrates' court, you face up to 12 months' imprisonment and, since 12 March 2015, an unlimited fine.

Fines are calibrated to the size and turnover of the organisation.

Personal liability of directors and managers

Section 37 of HASAWA provides for personal prosecution of directors and managers.

Where an offence is committed by a company and is proved to have been committed with the consent or connivance of, or to be attributable to neglect by, a director, manager, secretary or similar officer, that individual can be:

• Prosecuted personally
• Fined personally
• Imprisoned (up to 2 years for serious offences)
• Disqualified from acting as a company director

This applies even if the company itself is also prosecuted. Directors cannot hide behind the corporate structure.

Fee for Intervention (FFI)

When HSE finds a material breach of health and safety law, they can charge you for the time they spend investigating and putting matters right.

FFI applies when HSE puts a material breach to you in writing in a Notification of Contravention (NoC). A material breach is any breach HSE considers serious enough to put in writing, including issues that could lead to improvement notices, prohibition notices or prosecution. You pay for all the time HSE spends identifying the breach, investigating, helping you put it right and taking enforcement action. You pay nothing if you are compliant, or if a minor issue is resolved with verbal advice.

You can dispute whether a material breach occurred or the amount charged. HSE has an internal review process, and you can ultimately challenge in court.

Sentencing guidelines

Since February 2016, courts have applied sentencing guidelines that link fines to the turnover of the organisation and the culpability of the breach.

Organisation size categories:

Example starting points (very high culpability breach):

• Micro organisation: starting point £250,000
• Large organisation: starting point £4,000,000

For very large organisations (turnover above £50 million), fines can be 3-4 times the large organisation starting point. Multi-million pound fines are common for serious breaches.

What to do if HSE visits