A3.3 Explain the responsibilities and powers of enforcing agencies and officers and the range of options related to enforcement action, their implications and appeal procedures. Flashcards
Who are the authorities empowered to enforce H&S legislation?
– HSE - for industrial premises
– local authorities - for commercial premises
What are the general powers of an inspector? (under section 20)
- At any reasonable time, he may enter a premises if he believes it is dangerous
- take a police officer with him if he is met with a serious obstruction
- Make any necessary examinations and investigations
- take photographs, samples,
- keep any article or substance for examination and for court use
- require any person whom he believes will give him information for his investigation, to provide answers and sign a document confirming the truth of his answers.
- can take copies of books/documents
- may exercise any other powers necessary to enforce relevant health and safety law.
- if practicable, when a sample is taken, the inspector shall give a portion of it to a responsible person.
- an inspector can seize an article or substance which he believes is a cause of imminent danger or serious personal injury.
What are the maximum penalties under the law with regards to enforcing authorities?
- offences under the HSWA are triable by summarily only or triable either way. The majority are dealt with under the ‘either way’ procedure.
- Summary conviction at a magistrates usually consist of a fine, up to 6 months imprisonment or both.
- Conviction on indictment at crown court can be an unlimited fine or up to two years imprisonment
What are the 5 principles of enforcement for the HSE? (detailed in HS41 - enforcement policy statement)
- PROPORTIONALITY OF ENFORCEMENT -
enforcement action should be proportionate to how serious the breach is. what is an absolute duty or reasonably practicable? what was the breach in relation to the cost of implementing a control - CONSISTENCY OF APPROCH -
- TRANSPARENCY-
duty holders need to know what is expected from them and what they should expect from the enforcing authorities. - TARGETING -
targeting the most high risk, least well controlled hazards as a priority.
-ACCOUNTABILITY-
enforcing authorities should have policies and standards in place against which they can be judged and a procedure for dealing with comments and complaints.
There is also a right to appeal to an employment tribunal.
What is an improvement notice? (section 21 and 23 of HSWA)
Because the trial period in the UK is lengthy, there may be serious danger between the enforcing authority detecting a breach and the offence being punished.
As a result, improvement notices were established.
If an inspector is of the opinion that a person is contravening one or more of the statutory provisions and this is likely to be repeated, they may service on them a notice stating with reasons that that person has to remedy the contravention within a specified period. The period to appeal the improvement notice is 21 days, therefore the period to which the duty holder can respond can be no less than 21 days.
The notice may include guidance and refer to an ACoP to ensure that a remedy is found.
An improvement notice is served on the person responsible for the breach of the law. Usually the employer.
Prior to issuing an improvement notice, the inspector should discuss the issues with the duty holder. This is so that there is the opportunity to discuss and resolve the situation prior to official action being taken.
What is a prohibition notice? (section 22 and 23 HSWA)
a more severe type of notice which is issued where there is a risk of serious personal injury. eg a machine which is not adequately guarded.
essentially, the action is prohibited until something is done to remedy it. It takes immediate effect.
As with an improvement notice, the prohibition notice may also contain supplementary information. eg reference to ACoP.
The Prohibition notice is served on the person carrying out the activities concerned.
The different is prohibition notices are served in anticipation of danger. Whereas, improvement notices is served where a contravention of H&S law is taking place and likely to continue. (not necessarily dangerous)
What is the appeals procedure regarding a notice? (section 24 of HSWA)
the appeals procedure is outlined in section 24 of HSWA.
Appeals against a notice must be made to an employment tribunal within 21 days of service of the notice. The tribunal may extend the time limit for appeal if its not reasonably practicable within the period.
An employment tribunal hearing an appeal against an enforcement notice may:
- affirm the notice (uphold or possibly extend)
- cancel the notice
Contravention of the terms imposed by either a prohibition or an improvement notice is an offence and may result in criminal proceedings against the offender by the inspector issuing the notice.
What are the prosecution options? and gives examples of what could result in such prosecutions
—–Simple Cautions (formal caution)
is a statement in writing, accepted in writing by the duty holder, that an offence has been committed.
—–Summary offence (magistrates court)
intentionally obstructing an inspector
falsely pretending to be an inspector
—- Indicatable offence (crown court)
no H&S comes into this category. However, it may be linked such as in manslaughter cases.
—–Either way offences (either magistrates or crown court)
- failure to carry out one or more of the general duties of the HSWA
- contravening any H&S regulations
- contravening a requirement imposed by an inspector
- preventing a person appearing before an inspector
- contravening a requirement of an improvement or prohibition notice
- making false statements
- making a false entry in a register, book
