Recent changes in the law mean that it is easier than ever to prosecute individuals and employers for breaches of health and safety legislation.
The Health and Safety (Offences) Act 2008 has seen the severity of penalties increase in such a way that even relatively minor offences can now result in hefty fines or even prison sentences for individuals convicted of certain health and safety offences.
Combined with the still relatively recent arrival of the Corporate Manslaughter and Corporate Homicide Act 2007, there is now, more than ever, a fundamental need for all duty holders to both understand and be able to manage a health and safety investigation correctly. Managing the involvement of the regulator is, self-evidently, an intrinsic part of this process.
Routine visits by the Health and Safety Executive (HSE) are becoming less common as there is now a more coherent focus on inspections of high-risk industries and the selective targeting of duty holders. However, post-incident, every duty holder should prepare themselves for a visit.
Whilst some inspectors may warn duty holders of their proposed visit, this is not a legal requirement as the HSE has the power to carry out an inspection on a workplace whenever they see fit so long as it is at a reasonable time (unless the inspector believes there is a dangerous situation in existence).
It is worth noting that a workplace can include work premises and homes of employees who work from home. Any attempt to disrupt or prevent an inspector conducting a visit can lead to a fine or a prison sentence depending on the severity of the obstruction. Despite any inconvenience an inspector’s visit may cause, it is advisable to assist an inspector in any way they request.
Somewhat surprisingly, the HSE has investigatory powers that are wider than those of the police. In particular, the HSE holds the power to compel individuals to answer questions that may assist their investigations. Any failure to answer the questions posed, without good reason, will be a criminal offence. The person giving the answers must also sign a declaration of truth for their answers.
The power of ‘compulsory interview’ is a draconian one and therefore there are safeguards in place to protect the interviewee. The answers given cannot subsequently be used in court against the person giving those answers (or against their spouse) and the power of compulsory interview should not be used where the inspector believes that the interviewee has committed a criminal offence.
To assist inspectors in their general duties, often conducting post-incident investigations, the law provides them with a number of additional powers. These include forcing premises to be closed off or remain undisturbed; requiring the production of any items, books or documents that they see fit. If required, the inspector is entitled to take copies of the relevant entries; taking measurements and photographs of the premises; dismantling anything they feel might pose health and safety risks.
Where an inspector believes that they have discovered a state of affairs that requires remediation, they have powers to issue Improvement Notices and Prohibition Notices.
Improvement Notices are written directions issued by an inspector requiring a company to remedy an alleged breach of health and safety law. In order for the Improvement Notice to be issued the inspector must be of the view that there is, or is likely to be, a breach of the law by the duty holder if the situation is not remedied. The Improvement Notice will specify the actions to be taken and will give a timescale for completion. Failure to comply is a criminal offence.
Accepting an Improvement Notice should be carefully considered, as acceptance is often cited in later court proceedings as evidence of an earlier acceptance of liability for breach of health and safety legislation.
Prohibition Notices prohibit any activity the inspector believes involves, or will involve, a risk of imminent and serious injury or harm to the health of any person. There does not need to be any breach of the law for a Prohibition Notice to be served.
Should a duty holder wish to appeal an Enforcement Notice it is possible to do so through the Employment Tribunal.
Since October 2012, under a programme called Fee For Intervention (FFI), the HSE has started to charge for their time incurred in visiting, assessing and corresponding with duty holders in circumstances where they believe that the duty holder has committed a material breach of health and safety legislation.
Where a material breach is identified, the inspector will effectively invoice the duty holder for all of their time involved in investigating, advising and liaising with the duty holder to ensure that the material breach is remedied.
As the inspector’s costs can only be recovered where there is a material breach, duty holders should think carefully before opening their cheque book as the payment of a FFI Notice is no guarantee that further enforcement action, such as prosecution, will not follow for the same material breach.