HSE enforcement: 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: Construction, manufacturing, factories, farms, chemical plants, railways, offshore installations
• Local authorities enforce: Shops, offices, retail, pubs, clubs, hotels, care homes, leisure facilities, 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 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 currently 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.

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

Effect of appeal:

• Improvement notice: Lodging an appeal suspends the notice until the appeal is decided or withdrawn
• Prohibition notice: The notice is NOT automatically suspended. You must apply to the tribunal for a direction suspending it, and the tribunal will decide whether to grant this

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:

• Up to 2 years imprisonment
• Unlimited fine

In the Magistrates' Court:

• Up to 12 months imprisonment
• Unlimited fine (since 12 March 2015)

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.

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:

What to do if HSE visits