Dealing with Enforcement Notice (Part 1)
In this video health and safety solicitor Sue Dearden chats with Sylvie Wright about the difference between improvement and prohibitions notices, if there is any financial penalty with the service of a notice, how to try to avoid being served with one and the grounds for making an appeal.
Watch out for part two which looks at the appeal process.
What is an enforcement notice?
What is an Improvement/Prohibition Notice and when might you expect to receive one?
Enforcement Notices will typically be served by the Health and Safety Executive (HSE) or an environmental health officer in local authority when the H&S Inspector forms the view that someone is breaching health and safety duties or requirements or has previously breached them and is likely to do so again.
For an Improvement Notice, nothing more is needed. You don’t need to have put anyone at risk of injury, you just need a breach of the duties.
For a Prohibition Notice though the breach needs to be one that involves the risk of serious personal injury.
You might receive a Notice on a routine inspection visit, which happens periodically, the HSE will have a list of industries that it prioritises but otherwise every few years you can expect a visit. They will also pop in or pick things up from time to time and when they are walking past, particularly construction sites, where they might see somebody working without a hard hat or at height for example. Or they can pick things up when they come in to investigate an accident, having been notified under RIDDOR which requires accidents of a particular degree of severity to be notified and that will then trigger an investigation.
The inspectors can be in for all sorts of reasons, they’ve got a right of access, and the Notices that they can serve will specify what the issue is and why the inspector is of the view that a health and safety regulation or statute has been breached.
They will direct in the case of a Prohibition Notice that activities to which the Notice relates will not be continued without the issue being put right. Prohibition Notices typically have an immediate effect because of the risk of injury.
Improvement Notices though generally won’t stop work immediately but will require action to be taken within a defined period, for example, 28 days to rectify the breach.
A Notice isn’t a court process then?
No, inspectors carry these pads of Notices and can write and issue them on the spot in the same way that the police can issue them if you get stopped for a traffic offence.
Is there any financial penalty with the service of a Notice?
The short answer is no, there isn’t directly a financial penalty. It’s not a fixed penalty Notice. However, compliance with a Notice can be expensive.
For example, if something needs to be designed and fabricated to change a machine to eliminate a nip point or guard a particular point, that can take time and could shut down a line until that’s been resolved. So, it can be expensive.
If it is the HSE which has served the Notice, then the HSE has the power to recoup its costs for the time spent in writing the Notice, in visiting and so on, through Fees for Intervention invoices. If in the future you’re prosecuted for a health and safety offence, typically, the prosecution will refer back to these Notices as evidence of poor health and safety record. A good health and safety record would be a mitigating factor, but they will say this is evidence that you had to have an intervention and it will increase the penalty imposed in many cases.
In summary, although the service of a Notice doesn’t directly impose a financial penalty on you, there are several ways in which it can have a significant financial impact.
How do you avoid being served a Notice – what can you do to avoid being in this position?
It is difficult because health and safety duties are very wide and very subjective.
In most organisations, people are involved doing the work and people don’t typically do everything right 100% of the time, no matter how much you train them.
If an inspector wants to find a breach, in most organisations they could probably walk in and find one. If you can be positive in your attitude when dealing with them it can go a long way. Just because there’s a breach, doesn’t mean they have to take enforcement action – they’ve got discretion.
If they can see that you’re auditing your own procedures and processes, that you’re taking health and safety seriously, that it’s led from the top down, you’ve got your documentation in good order and it’s organised and people are trained, you’ve got risk assessments in place and safe systems of work and so on then you’re less likely to receive a Notice even if a breach is identified. They might just say that needs sorting and will accept your assurance that it will be sorted.
Another way in which a Notice will typically be issued is the inspector goes in following an accident. If you’re in that position and the inspector is coming in to investigate what has happened, don’t wait to be told what to do. Some people think you’ve got to wait for the inspector to come in.
You may be issued with a Notice to leave things involved with the accident undisturbed, but that doesn’t mean you can’t look at your procedures around what’s happened. It doesn’t mean you can’t get things in place to ensure that there isn’t a risk at the time they come in and there is not a risk going forwards.
If you take those elements away, the inspector will not have grounds to serve a Notice. It might not stop them from prosecuting you for an offence that led to the accident, but they won’t serve you with a Notice if you have got your house in order.
If that fails and you get a Notice anyway, what can you do about it?
That depends, on what you can do and what you ought to do can be different.
Commercially, whether or not you feel the Notice was justified, the most economic option might be just to comply. If you do elect to comply, you can write to the inspector to say that you have complied or will be complying, but that compliance shouldn’t be taken as acceptance that the Notice was properly or justifiably issued. That might help you if you’re prosecuted at some point in the future, from it being used as an aggravating feature against you if there is some doubt about whether or not that Notice should properly have been served at that particular juncture.
If you’ve been given 30 days, for example, to comply, within that period for compliance you can negotiate with the inspector about the terms of the Notice. It can be any term, it may be that they have misunderstood something and they can rectify it, or you may simply need more time to comply.
As long as you are in that window of compliance they’ve got the power to alter it. But that power disappears the minute the period for compliance has expired.
You can deal with it that way. You can comply or negotiate changes in terms if there is a period for compliance, but if you fail to comply it is a criminal offence which will be prosecuted.
So really your options are; comply, negotiate, and comply, or you can appeal.
Do you appeal to the HSE or to the Court?
The Notices you want to appeal are taken to the local Employment Tribunal.
There are no fees payable to the tribunal when making an appeal, but what would be the grounds on which an appeal can be made?
There’s a bit of strategy which comes into this. You might want to lodge an appeal for tactical reasons only, particularly as there’s no cost for issuing your appeal.
You might lodge an appeal not necessarily because you think you might win. With an Improvement Notice, lodging an appeal will automatically suspend the impact of the Notice until the appeal is determined. If you just need more time to comply and the inspector isn’t willing to agree it, if you lodge the appeal then you can withdraw the appeal later, but it will buy you time.
If the Notice being appealed is a Prohibition Notice, which is normally of immediate effect, lodging the appeal won’t suspend the Notice because the Prohibition Notices are more serious and you will need to make an application to the tribunal to achieve a suspension of the Notice. To succeed with such an application, you will need to show that no one will be put at risk in the intervening period.
A speedy Expert report will often really help with that.
Which is where the Finch Experts come in.
Finch has a range of engineering, occupational hygiene and health and safety experts. Some of our Experts used to be HSE inspectors themselves so we’ve certainly got the expertise here at Finch Consulting to help you.
Part 2 of dealing with enforcement Notices looks at the appeal process.