Approved Codes of Practice
ACOPs offer advice on how people can comply with the law and practical examples of good practice. For example, where regulations use terms such as “so far as is reasonably practicable” it explains what this means and requires in particular circumstances. They supplement many pieces of health and safety legislation. ACOPs have a special legal status, unlike guidance, and can be considered as the benchmark standard during legal proceedings. Where the provisions in the ACOP have not been met the person must show that they have complied with the law in a different way, to a similar standard.
Enforcement Notices
An inspector may serve an enforcement notice on behalf of the local authority or Health and Safety Executive, either an improvement notice or a prohibition notice. Where a notice is served, guidance and advice should be provided to the duty holder as to how they can comply.
Improvement notices may be served by an inspector under section 21 of the Health and Safety at Work etc. Act 1974 where a person is found to be contravening any statutory provision and it is likely that this will continue or be repeated. An improvement notice requires that the person take measures to ensure their compliance with the statutory provisions in question by the date stated. These are generally used where it is unnecessary to stop the activity, it would not be practicable or it would heighten the risk. For example, a small dock company was found not to have sufficient and suitable risk assessments in place for work at height. An improvement notice was served requiring the company to conduct suitable and sufficient risk assessments. The notice should set a date by which the contravention must have been remedied and the person must comply with all provisions. The improvement notice should state who served it, the provisions in question, how this has been contravened and the date for compliance.
Prohibition notices may be served by an inspector as stated in sections 22 and 23 of the Health and Safety at Work etc. Act 1974 where they believe that an activity being carried out or likely to be carried out by or under the control of a person will contravene any statutory provisions or cause serious risk of personal injury. A prohibition notice requires that the activity must not be carried out by or under the supervision of the person until the matters have been remedied. These are generally used where continuing the activity may cause a serious risk to health and safety. A deferred prohibition notice may be served where appropriate if immediately stopping the activity or situation would contribute to the ultimate damage. For example, at the same small dock company a prohibition notice was served when it was found to be common practice for employees to stand on top of a road tanker whilst it was reversed. The notice should state who served it, specify the matters concerned and direct that the activity must not be carried out until the matters have been remedied. If the notice is a result of a contravention of statutory provisions these provisions should be stated at why it is believed that that these have been contravened.
The HSE may prosecute the recipient for noncompliance with an enforcement notice.
Prosecution
Where an inspector is aware of a serious breach of health and safety legislation they may prosecute the responsible person. The maximum sentences and fines for noncompliance with various statutory provisions are set out in section 33 of the Health and Safety at Work Act 1974. For failure to comply with a duty under sections 2 to 6 of the Health and Safety at Work 1974 the person may be prosecuted in the magistrates court with a maximum fine of £20000 and/or 6 months imprisonment. If prosecuted in the Crown court the fine and sentence are unlimited.
Where an enforcement notice has not been complied with by the date specified the person on whom it was served may be taken to court and prosecuted. For breach of an enforcement notice the maximum penalty on conviction in the magistrates court is a £20000 and/or 6 months imprisonment; in the Crown Court the maximum penalty and sentence is unlimited.
Following the prosecution, in place of or in addition to the penalty, under section 42 of the Health and Safety at Work Act 1974 the court may order the person to remedy the situation within a specified time.
When gathering evidence which may be used in court the provisions of the Police and Criminal Evidence Act 1984 must be followed. Where a person is suspected of committing an offence they should be put under caution before the their answers or silence in response to any questions may be used as evidence in court. The caution should be recited or read out and confirmed that the person understands and the person should be reminded that they are not under arrest, are not obliged to remain and their right to seek legal advice. An accurate record must be made of every interview under caution. The record must state who is present at the interview, the place, the time it begins and ends and any breaks in the interview.
Effectiveness of Enforcement Options
Good enforcement should be proportionate, targeted, consistent and transparent. Proportionality means applying enforcement options which are proportionate to the risks to health and safety and the seriousness of an offence. Targeting means inspection and enforcement is aimed at the most high risk activities and where the risks are not sufficiently controlled. Consistency is taking a similar approach in similar circumstances, not uniformity as slightly different circumstances require different means of enforcement. Transparency means helping duty holders to understand what is required of them and how they can meet their duties.
The fear of prosecution plays a significant role in coercing employers to comply with the law and act upon their implied moral obligation. A major factor in the effectiveness of prosecution is maintaining the perceived presence of inspectors and severity of sanctions for non-compliance. However, fines given on conviction are often very low and not necessarily consistent or proportionate to the offence to act as an effective deterrent. Due to the limits imposed on fines which can be prescribed for certain offences, the offender may still not ‘lose out’ overall; the fines imposed may not exceed what it would cost to comply. This essentially means that in these cases the threat of a fine does not encourage compliance since the offender still benefits economically by breaking the law. For fines to be an incentive to comply fines should reflect the businesses economic gain from non-compliance.
For good enforcement practice the decision whether to prosecute should be based on public interest. This means prosecuting in circumstances where the risk is greatest and where no or insufficient precautions have been taken. For example, where there has been a reckless disregard for health and safety, there have been repeated breaches or there has been a failure to comply with an enforcement notice.
A major criticism of enforcement practice, as stated in the Hampton Review, is the similar frequency of inspection of low risk industries and those of higher risk. Inspections on a periodic basis do not specifically target the higher risk areas, where they are needed most. Instead, as the Hampton Review found, risk assessments should be used to concentrate inspections where they are most necessary and “no inspection should take place without a reason”. This helps to avoid unnecessary expenditure of resources, maintains the perceived presence of health and safety enforcement where most necessary and allows persistent offenders to be identified more quickly and more proportionate action to be taken on account of this. It also helps to counter the common belief that health and safety enforcement targets irrelevant and small issues of no particular risk.
Small and medium businesses are not always aware what is expected of them from health and safety regulators. However, they may be unlikely to seek advice for fear of admitting that they do not understand how to comply and action will be taken if they are not compliant. This is fuelled by the perception that health and safety regulators will take action immediate over trivial risks. One way which the HSE is countering this and ensuring transparency of duties is through the Sensible Risk Campaign, as well as targeting inspection at larger businesses carrying out more risky activities. By building better relationships with businesses they are more likely to seek and follow advice to comply with legislation.
Guidance plays a significant role in achieving compliance and ensuring transparency of statutory duties. It helps to overcome ignorance of how businesses can comply and the perception that health and safety offences are not truly criminal since there is often no obvious victim. Guidance is often sufficient means to coerce a business into meeting their statutory duty.
Guidance and Support for Regulated Businesses
A range of guidance and support is available to regulated businesses. Guidance does not have any legal status but can offer advice and practical help to businesses. They can seek free guidance from the Health and Safety Executive’s website where advice is provided for different activities and industries. The website includes information on common risks, performance indicators/benchmarks, statutory duties and where and how other forms of guidance can be sought. The Health and Safety Executive also provide free and paid leaflets for businesses to download or order. The advice provided in HSE leaflets and through the HSE website offers examples of how businesses can comply with health and safety law but they do not have to take this advice and can demonstrate compliance in any way they choose. Businesses can also make enquiries and ask for advice through the helpline provided. For certain high risk industries, such as agriculture, the HSE provides Safety and Health Awareness Days, offering free practical advice and demonstrations.
Local Authorities are also involved in health and safety promotional activities supporting both local and national initiatives. Guidance is given annually to raise awareness and provide advice on priority topics.
Basic health and safety guidance and advice is also provided through central government, including several guides regarding general safety in employment provided on the government website and the citizens advice bureau website.
A license is required by the HSE to permit certain activities, for example, owning a gun, selling alcohol, door staff. This may be issued to the premises or the person and may be time limited. The licence is generally issued with certain conditions which must be met, for example, not to sell alcohol to anyone under 18 or to receive adequate training. These conditions ensure that anyone working in the industry understands how they are required to carry out the activity and that they are properly trained.
Some higher risk industries have individual regulatory bodies who work with the HSE. Workers in these industries must register with for a license to demonstrate adequate training and compliance with the relevant legislation. The licensing bodies review and inspect anyone registered regularly and offer advice. For example, anyone carrying out work with gas must be registered by the Gas Safe Register (formerly regulated by CORGI).
Standardized management systems relating to health and safety available are a form of guidance, more suited to medium to large organizations. The British Standards Institution provides the structure for a management system which will comply with health and safety legislation, OHSAS 18001:2007. The International Standards Organisation also provides requirements for implementing standardized management systems which ensure compliance with health and safety legislation for specific areas of work, for example ISO/TC 199 Safety of Machinery. The requirements for processes and procedures for record keeping, documentation, training and periodic maintenance and inspection are defined. Businesses can then gain accreditation, if they so wish, to demonstrate compliance to external bodies, customers and clients.
In addition to enforcement actions, insurance costs are a major incentive for businesses to follow guidance and take measures to avoid workplace accidents and injuries. Risk assessments will often be undertaken by the insurance company to assess the safety of the system of work and determine the cost of insurance. The higher risk the activity and health and safety management system, the higher the insurance costs, especially where previous incidents have occurred or enforcement action has been taken.
References
www.HSE.gov.uk
Health and Safety Regulation- A Short Guide, HSE
Reducing administrative burdens: Effective Inspection and Enforcement, Phillip Hampton
Health and Safety at Work etc Act 1974
Police and Criminal Records Act 1984
Police and Criminal Records Act 1984, Code C, Paragraph 11.7 (a)
Reducing Administrative Burdens: Effective Inspection and Enforcement, Phillip Hampton, 2005, Chapter 2.92
http://www.direct.gov.uk/en/Employment/HealthAndSafetyAtWork/index.htm
http://www.adviceguide.org.uk/
