Managing COVID-19 related Enforcement Notices

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Meat cutting and packing plants have been among the first businesses to experience multiple employee COVID-19 infection, strongly suggestive of the fact that the virus has spread through contact and exposure in the workplace. Enforcement Notices are likely to play a key role in the enforcement measures adopted to manage any employer breach of health and safety duties and in the current climate, regulators will want to be seen to be playing their part in the national struggle to defeat the virus.

In this article Health and Safety specialist solicitor Sue Dearden, industrial hygienist Steve Cowley and former HSE Principal Inspector Melvin Sandell consider this method of enforcement and particular issues arising for recipients of Enforcement Notices in the context of COVID-19.

When can enforcement Notices be served?

High infection rates have been reported in meat works in Germany, the UK and elsewhere. These types of premises are not alone in having difficulties managing the issue of infection, but it does throw into stark relief the need for risk assessments which very carefully take account of the specific conditions in each working environment. Meat works are generally crowded, high intensity environments, often reliant on migrant workers who may live and travel together and this, more than anything else, is likely to have contributed to their high infection rates. Current government guidance is to maintain social distancing wherever possible and then control whatever risk remains. An element of this additional control in these environments could be to reduce the time staff spend in proximity to one another.

In common with many other workplaces, reasonably practicable controls will need to put safety before profit, and will be expected to include:

  • working from home where possible;
  • avoiding public transport for commuting where possible;
  • keeping those with symptoms or exposure to symptoms in the past 14 days out of the workplace;
  • regular enhanced cleaning (particularly of high contact areas);
  • regular and frequent handwashing (or use of a sanitiser when not possible);
  • social distancing or, where not possible, then mitigation of the risk through such measures as:
    • positioning of workers to limit exposure to each other
    • increasing spacing between workers (slowing throughput if necessary)
    • staggered entry/exit times
    • shift management, or
    • the formation of small bubbles of workers (who have close contact with each other but not with others outside the bubble);
  • consulting with and educating staff to ensure that the controls are understood and complied with so they are as effective as they can be , and
  • auditing for compliance and regular reviews to keep risk assessments up to date.

Health and Safety regulators have a number of tools at their disposal to enforce compliance with the law and enforcement Notices are likely to be the preferred control measure for breaches of duty relating to COVID 19 in the workplace. This is because prosecuting breaches and imposing significant fines on businesses already suffering economically as a result of the virus is unlikely to be politically acceptable, save for specific exceptional circumstances.

There are two types of Notice:

  • Section 21 of the Health and Safety at Work etc Act 1974 (“HSWA”) creates the power for an inspector to serve an Improvement Notice (“IN”) if they are of the opinion that there is a contravention of a duty, or there are circumstances that make it likely that the contravention will continue or be repeated.   There is no need for anyone to have been injured or in fact for a contravention to have put anyone at risk of infection from Covid 19.  An IN might be used, for example, where there are no or inadequate risk control measures in place or a Covid 19 risk assessment is deemed insufficient even though there is no evidence that anyone has Covid 19 in the workplace.
  • Section 22 HSWA creates the power for an inspector to serve a Prohibition Notice (“PN”) if they are of the opinion that activities are or are likely to be carried out involving a risk of serious personal injury. A PN can be served where the inspector believes the lack of effective control measures is such that there is a serious risk of infection. It is not necessary for anybody to have been infected for an inspector to reach that view.  A PN can also be served where there is some evidence which suggests staff have probably been infected through contact with others in the workplace and/or there are cases of infection in the workplace.  This infection does not have to be as a result of the work activity.  The fact that it is spreading among employees in a workplace evidences a lack of risk control.

IN’s will ordinarily allow a period of time for compliance. PN’s may allow time for compliance but are usually of immediate effect. In either case, the only way an IN or a PN can be discharged is by the Inspector agreeing to withdraw it, or through a successful appeal to the local Employment Tribunal.  Importantly, the Inspector only has the power to withdraw a Notice before the period of time for compliance has expired).

Early Strategy

If an Inspector on a visit starts to talk about an IN or a PN, or pulls out a large pad on which the Notices will be written and served immediately, try to engage positively with them.

If possible, offer to stop the work activity immediately and put in place effective controls that the inspector can review before they leave site. It is harder to justify serving an IN or a PN if no risk is ongoing.

If the Inspector understands the implications for your business, and you provide assurances of actions you will take voluntarily, they must take account of this before they serve a Notice. One of the more draconian, longer term impacts that an Inspector does not always appreciate, is where a business relies on the sale of its services to the public sector. Tenders for public sector work often require disclosure of past INs and PNs and may eliminate a contractor which has received a Notice in recent years.

Notices also form part of the recipient’s criminal record and, for limited companies, there is no rehabilitation of offenders’ legislation which expunges the record after a period of time, as it does for individuals. These records have a very long tail and will adversely impact sentencing for subsequent H&S breaches for years to come. That last point is unlikely to help persuade an inspector not to serve a Notice, but it might motivate engagement in your business at a high level to assure necessary funding for steps to be volunteered to try and avoid service of a Notice.

If the inspector is still minded to serve a Notice then try to negotiate. Seek more time for compliance, not just where you need more time to comply, but to preserve for as long as possible the inspector’s power to withdraw the Notice (a power disappears as soon as the time for compliance passes).   These Notices are sometimes withdrawn by regulators to avoid the risks and costs of litigation, particularly if, in the interim, the risk they wanted managed (without any admission being made) is eliminated. If withdrawn, then there is no lasting criminal record.

If served with a Notice which you think is unfair and want to challenge, do not assume that you have until after the period of compliance in which to lodge an appeal. You have only 21 days to appeal, from the date of service of the Notice (date of service being day 1). If you appeal an IN, the Notice will be suspended until the appeal is resolved. If you appeal a PN there is no automatic suspension, but you can apply for an order to suspend the Notice which the Employment Tribunal will consider.

Without a suspension, non-compliance with a Notice is a criminal offence.

Grounds for Appeal against a Notice

The usual grounds of appeal are that there was no breach of the statutory provisions and, for a PN, that no one was or would have been put at risk of serious injury. The burden of proof is on the appellant and it is not an easy burden to discharge where one of the very generally worded breaches has been alleged. An alleged failure to ensure, “so far as is reasonably practicable”, that people were not put at risk, is not easy to challenge. Because of the difficulty in discharging the burden of proof for such subjectively interpreted duties, appeals are generally reserved for cases where the inspector has misunderstood a situation and was clearly wrong, or where a challenge is worth attempting commercially to try and remove or modify a very expensive and onerous obligation which the Notice imposes.

Comment

An interesting issue arises in relation to any PNs issued in the context of Coronavirus controls.

In HM Inspector of Health and Safety -v- Chevron North Sea Limited [2018] UKSC 7, the Supreme Court in a decision binding throughout the UK ruled that on an appeal against a PN (which requires the presence or imminent presence of a risk of serious injury), the Court is not confined by what information was or was reasonably known to an Inspector at the time the Notice was served. Instead, the Court could consider additional evidence which had since become available to determine whether at the time of service of the Notice, there had in fact been a risk of serious injury. The Chevron decision concerned the condition of helipad steps which the HSE believed honestly, but wrongly, to be unsafe, as proved by subsequent testing. The Court made clear that the issue is not whether the inspector had reasonable grounds for his belief at the time of service of a Notice. What is relevant is whether, taking account of all the evidence, they were right.

Knowledge about COVID 19 is rapidly evolving. It is entirely possible that risk controls advised one day, will subsequently be found to have no real effect on the spread of the virus. If inspectors are specific in the Notices they serve about the controls required to be in place, they risk those Notices being challenged as new information becomes available. Even if outside the 21 day period to lodge an appeal, when there is new evidence, the Tribunal can exercise discretion to allow a late appeal to proceed.

This issue should not be confused with changing restrictions as the virus is brought under control. Just because what is regarded as minimum safe social distancing a few weeks ago is in the process of being halved does not mean that the previous advice was wrong. It reflects the changed degree of risk as the virus continues to be brought under control. The point about the Chevron finding in the context of COVID 19 is not the evolution of risk, but that scientific knowledge is continuing to develop. The current belief that some factors create risk, may be found later to have been incorrect.

H&S inspectors are not happy about the Chevron case and, to get around the possibility of being wrong, it has increasingly become the practice to serve Notices which lack the detail of what needs to be done by the duty holder to comply with the law. This does not assist duty holders in identifying what they need to do. This reluctance to comment is mirrored by HSE and Government guidance being issued during the pandemic which requires the achievement of control, without detailed advice as to how that is to be achieved.

This leaves duty holders in a difficult position, but also a strong position in negotiations with inspectors preparing to serve a Notice (see above). The ambiguities open up the possibility of more successful appeals which inspectors will want to avoid.

In summary

We expect Prohibition and Improvement Notices to be key enforcement tools used by health and safety regulators monitoring employers, investigating complaints, and responding to infection spikes in workplaces. They are likely to be popular because, for the HSE at least, they will evidence a breach that triggers Fees for Intervention invoices to recoup HSE investigation costs. Politically they also demonstrate inspectors are doing what they can to play their part in keeping people safe, while avoiding a backlash which a proliferation of prosecutions and high fines is likely to generate from industries hit hard economically by the effects of the pandemic.

Since you need to comply with statutory duties but cannot expect much detailed advice on “how” from the Government or HSE, bear in mind that Finch Consulting will not be joining the politicians on the fence. Finch Consulting’s experts are very much concerned with the “how” and is currently offering clients a swift, affordable, multidisciplinary review of COVID 19 risk assessments incorporating legal expertise, an industrial hygienist, a former HSE inspector and behavioural expert. This is not only likely to be a more cost-effective step to take than facing enforcement action but may well be your best defence against enforcement.

For more information contact Finch Consulting on 01530 412777 or Email:

Susan.dearden@finch-consulting.com

Stephen.Cowley@finch-consulting.com

Melvin.sandell@finch-consulting.com