Enforcement of H&S Law Flashcards

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1
Q

Which section of HSWA covers the identification of the organisations responsible for the enforcement of H&S legislation?

A

Section 18 of HSWA

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2
Q

Generally, who are the two authorities responsible for enforcement?

A

HSE - Industrial Premises

Local Authority - Commercial Premises

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3
Q

Name the Regulation which is responsible for the arrangements for the division of enforcement responsibilities

A

The Health and Safety (Enforcing Authority) Regulations 1998

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4
Q

List four areas enforced by the HSE

A

Any activity in a fairground
Agricultural Activities
Construction Work
Any activity in a mine or quarry

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5
Q

List four areas enforced by Local Authorities

A

Office Activities
Catering Services
Playgroup Facilities
Places of Worship

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6
Q

List 8 general powers of an Inspector and the section that sets out these powers

A

At any reasonable time where he is of the opinion that a dangerous state exists, enter any premises which he has reason to believe it is necessary for him to enter, in order to exercise his powers

Make any necessary examinations and investigations

Take photographs and such measurements as he thinks is necessary

Retain any article or substance for such time as is necessary for examination

Require the production of, inspect and take copies of any books or documents which are required to be kept by the Regulations

Take a police officer with him if he has reasonable cause to believe he may meet with serious obstruction in the execution of his duties.

He may direct that those premises or part of them shall be left undisturbed for so long as is reasonably necessary for the purpose of investigation or examination

Require any person whom he has reasonable grounds for believing may be able to give information relevant to any examination or investigation he is concerned with, to answer such questions as the inspector thinks fit to ask and to sign a declaration of the truth of his answers.

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7
Q

How are criminal offences under HSWA classified under Law

A

Triable summarily or Triable either way

The majority of offences are dealt with under the ‘Either Way’ procedure.

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8
Q

Upon summary conviction list the maximum penalties

A

Magistrates Court

A Fine
Up to Six Months Imprisonment
Both

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9
Q

Upon conviction on indictment list the maximum penalties

A

Crown Court

Unlimited Fine and/or up to 2 years imprisonment

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10
Q

List the penalties for non-compliance with an Improvement or Prohibition Notice

A

£200 for every day that non-compliance continues

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11
Q

Explain the purpose and aim of the Deregulation Act 2015

A

This Act limits the scope of Section 3, HSWA to self-employed persons who conduct an ‘undertaking of a prescribed description’ - This means work in high risk areas such as agriculture, asbestos and gas.

The aim is to reduce the regulatory burden on the self-employed unless they are involved in activities that expose themselves and others to significant risk. This means that Section 3 no longer applies to all self-employed persons and only to those carrying out specific types of higher risk work.

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12
Q

List the principles detailed in the Enforcement Policy Statement

A
Proportionality of Enforcement
Consistency of Approach
Transparency
Targeting
Accountability
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13
Q

Describe what is meant by ‘proportionality of Enforcement’ under the EPS.

A

Enforcement should be in proportion to any risks to Health & Safety, or to the seriousness of any breach of law. Enforcing authorities should take into consideration how far the duty holder has fallen short of what the law requires and the extent of the risks to people arising from the breach.

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14
Q

Describe what is meant by ‘Consistency of Approach’ under the EPS.

A

Duty holders managing similar risks expect a consistent approach regarding advice given, the use of enforcement notices, decisions on whether to prosecute and the response to incidents. The HSE recognises it is not that simple and considers a number of factors including: The degree of risk, attitude and competence of management, history of incidents and previous enforcement action.

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15
Q

Describe what is meant by ‘transparency’ under the EPS.

A

Duty holders need to understand what is expected of them and what they should expect from the enforcing authorities. They should also be clear about what they do and do not have to do. This means clarity on what the statutory requirements are and what is simply guidance that is desirable but not compulsory. Transparency also involves making sure that employees and their representatives are kept informed about any decisions made and actions taken.

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16
Q

Describe what is meant by ‘targeting’ under the EPS.

A

This ensures that resources are directed to those whose activities give rise to the most serious risks or where the hazards are least well controlled. Action needs to be focused on the duty holders who are responsible for the risk and who are best placed to control it. Enforcing authorities should have systems to prioritise inspections, investigations or other regulatory contacts based on risk.

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17
Q

Describe what is meant by ‘accountability’ under the EPS.

A

Enforcing authorities should have policies and standards in place against which they can be judged, and an effective and accessible procedure for dealing with comments and complaints. The leaflet ‘What to expect when a Health & Safety Inspector calls’ sets out HSE’s procedures for dealing with comments and handling complaints. There is also the right of appeal to an Employment Tribunal in the case of statutory notices. Local authorities have their own complaints procedures but details depend on the individual authority.

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18
Q

Explain the purpose of the HSE’s Enforcement Management Model

A

The HSE’s Enforcement Management Model is a system that helps inspectors to make enforcement decisions in line with the HSE’s Enforcement Policy Statement. The EPS sets out the principles inspectors should apply when deciding what enforcement action to take in response to breaches of H&S legislation. The key principle is that enforcement action should be proportional to the H&S risks and the seriousness of the breach.

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19
Q

List the four aims of the Enforcement Management Model

A

Provides inspectors with a framework for making consistent enforcement decisions

Helps managers monitor the fairness and consistency of inspectors enforcement decisions in line with the HSE’s policy

Assists less experienced inspectors in making enforcement decisions

Helps those directly affected by enforcement to understand the principles inspectors follow when deciding on a particular course of action

20
Q

What is meant by a material breach

A

A material breach is when, in the opinion of a HSE inspector, there is or there has been a contravention of H&S law that requires them to issue notice in writing of that opinion to the duty holder.

21
Q

When a HSE Inspector cites a material breach; what form of written notification may this take? give all three options.

A

A notification of contravention
A prohibition or improvement notice
A prosecution

22
Q

When a HSE Inspector cites a material breach; what information must be included within the written notification?

A

The law that the inspectors opinion relates to

The reasons for their opinion

Notification that a fee is payable to the HSE

23
Q

How does an assessor decide whether the duty holder is in material breach of the law?

A

HSE must apply the relevant guidance abd the principles of HSE’s existing decision making frameworks such as the Enforcement Management Model and the Enforcement Policy Statement

24
Q

Explain the purpose of the Fee for Intervention

A

A fee for intervention is a cost recovery scheme which applies where the HSE is the enforcing authority. This allows the HSE to recover its costs from duty holders who are found to be in material breach of H&S law. The fee is based on the amount of time that the inspector has had to spend identifying the contravention, helping to put it right, investigating and taking enforcement action.

25
Q

When may an Improvement Notice be issued?

A

These may be issued for any activities to which relevant statutory provisions apply. If an inspector is of the opinion that a person is contravening one or more of the relevant statutory provisions, or has contravened one or more of those provisions in circumstances that make it likely that the contravention will continue or be repeated, he may serve a notice stating his opinion, with reasons, and requiring that person to remedy the contravention within a specified period.

26
Q

What is the minimum timescale for remedy following an improvement notice?

A

The period must not be less than the period within which an appeal against the notice may be brought; this period is 21 days.

27
Q

Who is an improvement notice served on?

A

An improvement notice is served on the person responsible for the breach of the law. If the law is breached imposes obligations on employers, but the breach is by an employee, then the notice is served on the employer.

28
Q

When may a Prohibition Notice be issued?

A

This is issued where the inspector is of the opinion that the activities involve, or may involve, the risk of serious personal injury.

The notice shall state that the inspector is of the opinion as mentioned and shall specify the matters that give rise to the risk and direct that the activities that the notice relates to shall not be carried on by, or under the control of, the persons on whom the notice is served, unless they have been remedied.

29
Q

When are activities stopped following a prohibition notice?

A

Immediately - a prohibition notice MAY be deferred, only if stopping an activity immediately would give rise to risk.

30
Q

Who is a prohibition notice served on?

A

A prohibition notice is served on the person carrying on the activities concerned. There is no requirement that a contravention of H&S law is taking place, or has taken place.

31
Q

What is the main difference between a Prohibition notice and an Improvement notice

A

Prohibition notices are served in anticipation of danger whereas an Improvement notice is served where a contravention of H&S law is taking place, has taken place or is likely to contain but is not necessarily dangerous.

32
Q

What is meant by a ‘Deferral’ as it relates to notices?

A

In cases where either an improvement notice or prohibition notice has been served but is not to take immediate effect, it may be withdrawn at any time by an inspector at any time before the end of the period specified in the notice.

Also, the period may specified may be extended or further extended by an inspector at any time provided an appeal against the notice is not pending.

33
Q

When making an appeal against a notice; what information must be included?

A

Name and address of appellant
Date of the notice appealed against
Address of the premises concerned
Name & address of the issuing inspector
Which aspect of the notice is being challenged
The grounds of appeal

34
Q

On what grounds may someone appeal against a notice?

A

Wrong legal interpretation by the inspector

The inspector has exceeded his powers

Breach of law admitted but remedy is not practicable or reasonably practicable

Breach of law is admitted but insignificant

35
Q

When hearing an appeal against an enforcement notice, what may the Employment Tribunal decide to do?

A

Affirm the notice

Cancel the notice

36
Q

Under what circumstances are enforcement officers able to lead prosecution proceedings?

A

Magistrates Court

37
Q

What prosecution options are available for criminal offences for H&S?

A

Simple Cautions

Statement by an inspector, accepted in writing by the duty holder, that the duty holder has committed an offence for which there is a realistic prospect of conviction.

38
Q

What offences may be considered ‘Summary Offences’?

A

Contravening a requirement imposed under HSWA (S14 Power of HSE to order an investigation)

Intentionally obstructing an officer

Falsely pretending to be an inspector

39
Q

What offences may be considered ‘Indictable Offences’

A

No H&S offences fall within this category.

40
Q

What offences may be considered ‘Either Way Offences’ heard in either the Magistrates Court or the Crown Court?

A

Failure to carry out one or more of the general duties of HSWA S2-S7

Contravening HSWA S8 - Intentionally or recklessly interfering with anything provided for safety

Contravening HSWA S9 - Levying payment for anything that an employer must by law provide in the interests of H&S

Contravening any H&S Regulations

Contravening a requirement imposed by an inspector under S20 (Powers of Inspectors) or S25 (Power to deal with imminent danger)

Preventing or attempting to prevent a person from appearing before an inspector, or from answering his questions

Contravening a requirement of an Improvement Notice or Prohibition Notice

Intentionally or recklessly making false statements, where the statement is made in either of these cases: To comply with a requirement to furnish information or to obtain the issue of a document.

Intentionally making a false entry in a register, book, notice etc. which is required to be kept

41
Q

What is involuntary manslaughter

A

Involuntary manslaughter is a common law offence where someone kills someone due to recklessness or gross negligence, but did not intend to kill or cause serious injury

42
Q

To convict an individual of involuntary manslaughter; what must the prosecution prove?

A

Defendant was in breach of a duty of care

Breach caused the death

Breach may be characterized as gross negligence

43
Q

What is the maximum penalty available for involuntary manslaughter

A

Life imprisonment

44
Q

Provide the historical background of Corporate Manslaughter

A

Until 6 April 2008, corporate manslaughter was a category of common law offence of involuntary manslaughter.

The Corporate Manslaughter and Corporate Homicide Act 2007 is now in force and the common law offence of corporate manslaughter has been withdrawn.

45
Q

Provide an example of case law for successful prosecutions for corporate manslaughter.

A

Lyme Bay Disaster (1993)

Four teenagers died following a canoeing trip across Lyme Bay in Dorset. Both the Company, OLL Ltd. and its Managing Director, Mr Kite, were successfully prosecuted and convicted of Manslaughter.

Mr Kite was not only a director but also very much involved in the day to day operations of the company.

46
Q

To prove a company guilty of ‘Corporate Manslaughter’ what elements of the offence must be proved beyond all reasonable doubt?

A

The defendant is a qualifying organisation

The organisation causes a persons death

There was a relevant duty of care owed

There was a gross breach of the duty

A substantial element of the breach was in the way the activities were managed or organised by Senior Management.

47
Q

Upon conviction of Corporate Manslaughter; what punishments may the Court impose?

A

Unlimited Fines

Remedial Order

Publicity Order