Responding to CDM enforcement action

HSE has a range of enforcement powers. Understanding what you are facing helps you respond appropriately.

Types of HSE enforcement action

An improvement notice means HSE has identified a breach of health and safety law. You must remedy the breach by the date specified on the notice.

Your options when you receive an improvement notice

1. Comply with the notice - Remedy the breach by the deadline. Notify HSE when complete. Provide evidence of compliance.
2. Appeal the notice - You have 21 days to appeal to an employment tribunal. An appeal suspends the improvement notice until the tribunal decides.
3. Request an extension - If you cannot comply by the deadline, contact the issuing inspector to request more time. They may agree if you show good faith effort.

What happens if you do not comply

• HSE may prosecute for failing to comply with an improvement notice
• Penalty: unlimited fine and/or up to 2 years imprisonment
• You may also face prosecution for the original breach
• HSE publishes conviction details - reputational damage

A prohibition notice is the most serious form of enforcement action short of prosecution. It means HSE believes there is a risk of serious personal injury if the activity continues.

Immediate actions for prohibition notice

1. Stop the specified activity immediately - Do not wait, even if you disagree with the notice
2. Inform all affected workers - Make sure no one continues the prohibited activity
3. Barricade or isolate the area - Prevent accidental resumption
4. Do not resume until the risk is eliminated - The notice remains in force until HSE withdraws it or a tribunal cancels it

Appealing a prohibition notice

You have 21 days to appeal to an employment tribunal. However:

• The prohibition notice remains in force during the appeal - you cannot resume the activity unless the tribunal directs the notice be suspended pending the appeal (this is rare and must be applied for)
• The tribunal may modify, affirm, or cancel the notice
• If you lose the appeal, you may be ordered to pay HSE's costs (for example where the appeal had no reasonable prospect of success)
• Seek legal advice before appealing

What happens if you ignore a prohibition notice

• Criminal prosecution is almost certain
• Penalty: unlimited fine and/or up to 2 years imprisonment
• Directors can be personally liable if they consented to or connived at the breach
• Insurance may be voided for deliberate non-compliance

Prosecution means HSE believes the breach is serious enough to warrant criminal charges. This can happen for:

• Serious breaches of CDM 2015 or other health and safety law
• Persistent failure to comply with enforcement notices
• Incidents resulting in death or serious injury
• Deliberate or reckless disregard for safety

What to expect during prosecution

1. HSE investigation - Inspectors gather evidence, interview witnesses, request documents
2. Summons or charge - You receive formal notice of the charges against you
3. First hearing - Magistrates' court for plea and case management
4. Trial - Either in magistrates' court or Crown Court for serious cases
5. Sentencing - If convicted, the court determines the penalty using the Sentencing Council's Health and Safety Offences Definitive Guideline, which sets fines by reference to the organisation's turnover, culpability and harm

Potential penalties on conviction

Director and senior officer liability

Under section 37 of the Health and Safety at Work Act 1974, if a company commits an offence with the consent, connivance, or neglect of a director, manager, or similar officer, that individual can be prosecuted personally. Directors have received custodial sentences for construction safety failures.

Whatever enforcement action you have received, you need to remedy the underlying breach. Common CDM compliance failures include:

Common breaches requiring remediation

• No construction phase plan - Prepare one before work continues
• No written appointments - Issue formal appointment letters for Principal Designer and Principal Contractor
• Missing pre-construction information - Gather and share site information with designers and contractors
• Failed to notify HSE - Submit F10 notification immediately if project is notifiable
• Inadequate welfare facilities - Provide toilets, washing, drinking water, rest areas
• Work at height failures - Install edge protection, inspect scaffolds, provide training
• Asbestos management failures - Commission survey, engage licensed contractor if needed

When you have completed remedial work:

1. Contact the issuing inspector in writing - Confirm you have complied with the notice
2. Provide evidence - Photos, training records, equipment certificates, updated risk assessments
3. Request confirmation - Ask HSE to confirm the notice is satisfied
4. Keep all documentation - You may need it if there are future inspections or disputes

Once you have addressed the immediate issue, review your systems to prevent recurrence. Enforcement action creates an evidence trail - HSE will look more closely at future projects.

Actions to strengthen compliance

• Review all current projects - Check CDM compliance on every site
• Update risk assessments - Ensure they reflect current work activities
• Improve supervision - Increase management oversight on site
• Train your people - Ensure everyone understands their CDM duties
• Document everything - Keep records of appointments, plans, assessments, training
• Engage competent help - Consider CDM advisors if you lack in-house expertise