What Types Of Enforcement Action Could The HSE Take?
Even though employers have specific duties to ensure that health and safety regulations are compiled to protect the health, safety and welfare of their employees, within construction there continues to be a high rate of accidents and incidents which result in death, injury and financial loss due to unsafe working conditions.
To ensure that the law is being complied with, the Health and Safety Executive (HSE) and their Inspectors, have specific investigative powers to enter your construction site(s), or premises. These powers include interviewing employees, taking witness statements, taking photographs, and removing or putting out of use any plant, equipment, or machinery that is believed to be dangerous.
Where there is a significant risk to the health and safety of employees, workers or members of the public, or there is a substantial health and safety breach, HSE Inspectors also have the power to issue Enforcement Notices to prevent or stop any unsafe working practices.
Types Of Enforcement Notices
- Fees for intervention –
Fees for intervention were introduced by the HSE in October 2012 as part of the Governments approach to health and safety reforms, to shift the cost of enforcement from the public purse to the non-compliant Duty Holder. Where an Inspector identifies a ‘Material Breach’ the Duty Holder will be required to cover the cost resulting from the associated investigation and enforcement. A ‘Material Breach’ is defined as a contravention of health and safety law which necessitates a notice in writing to be issued therefore; technical or trivial breaches where verbal advice may suffice would not be subject to this.
Fees for Intervention are currently charged at £154 per hour (as of 2019) for the time taken for carrying out site visits, preparation of notices, statements, reports and also for support staff involved in the particular case. The written notice from the Inspector will identify the legislation breached and justification for this and will highlight that a fee will be payable, although this fee invoice will be sent separately. The invoice must be paid by the Duty Holder within 30 days unless an appeal has been made within 21 days. Should the notice be overturned, any fees paid would be refundable – however, should this be lost the time taken with the appeal will be added to the initial invoice.
- Improvement Notice –
HSE Inspectors may issue an Improvement Notice where there is not a serious risk, but there is a breach of legislation. An Improvement Notice may be served if there is a breach of one or more of the relevant statutory provisions, or where it is likely that the breach will continue to be repeated. Such examples may include incomplete or no risk assessments, inadequate training, poor housekeeping and restricted access routes. The effect of the notice is to require a specific improvement to take place within a specified time to bring the condition back to legal compliance. However, this does not completely shut down or stop the site, or any work being undertaken.The Notice shall include the relevant actions that the Principal Contractor or Contractor must take within a realistic timeframe and may also offer guidance to assist the Duty Holder as to how to comply; again, the Duty Holder can appeal this notice which must be made within 21 days of issue.
- Prohibition Notice –
Section 22 of the Health & Safety at Work Act allows Inspectors to issue a Prohibition Notice in a similar fashion to an Improvement Notice. However, Inspectors are of the opinion that a workplace activity will pose a serious risk to personal injury. This notice can apply to a worksite/workplace as a whole, a particular workplace activity, or particular equipment/machinery in operation. The notice will usually take immediate effect and the activity must cease. Such examples may include unguarded machinery, incomplete scaffolding or inadequate safety procedures for high risk activities such as confined space work.
The Prohibition Notice will remain in place and the particular activity will cease until you can demonstrate suitable actions have been taken, or put in place, to minimise the risk of serious personal injury. The enforcing bodies will usually then have to re-inspect the workplace to ensure that suitable actions are now in place. Notices like this will put your organisation in the spotlight with enforcing authorities and you may be subject to additional random spot checks.
The simple way to avoid intervention and enforcement action is to ensure that you remain compliant in the first place!
Please contact Marpal Ltd on 01332 668877 should you need any assistance in safe working practices. You may also require a site safety audit to ensure you are compliant with the law and on track to avoid any enforcement actions; we are here to help. You can alternatively visit our website at www.marpal.co.uk.