1. In many cases service of a notice is by hand, immediately on site. Where the noticeis served on an employee then a letter with a copy of the noticeshould be sent to the registered office to ensure they are aware the noticehas been served.
2. Section 46 HSWA details ways by which a noticemay be served. There may be other ways outside the scope of Section 46.
3. If the recipient of a notice accepts that they have received it, this cures any defect in service.
4. Section 7 of the Interpretation Act 1978 states that any document served by post (properly addressed, prepaid and posted) will be deemed to have been served at the time at which the letter would be delivered in the usual way by post, unless proved otherwise.
5. In order to confirm that a notice has been properly served details of the delivery and signature can be obtained through the postal system used.
6. You should serve the first copy of any notice (typed or written); the second must be preserved in the office records. Where appropriate a copy of the notice should be placed on the public register, (in FOD this is done through the COIN record).
7. The leaflet ETS19 (“Making an appeal to an Employment Tribunal against an improvement or prohibition notice in Health and safety and related matters”) should be given out or sent with the notice. This includes the form for submitting an appeal. The reference to the appeal process needs to be carefully explained / worded as some dutyholders think they need to appeal to have a notice ‘lifted’.
8. Where there is a history of non-compliance, or extensive resources are required to comply with a notice, you should ensure that a copy is brought to the attention of an appropriate senior manager or director. In the event of non-compliance this may assist in a prosecution of that person under section 37 of the HSWA.
9. A copy of the notice should be provided to employees or their representatives in accordance with section 28(8)(b) of HSWA.
10. Service of improvement notices where the corporate body operates on a number of sites has given rise to difficulties in the past. You should therefore ensure that the notice comes to the attention of senior members of the organisation and also to ensure that it is served; in the case of a corporation, at the registered office which may be a firm of solicitors or accountants.
11. Section 46(6) provides that, where service is authorised on the owner or occupier of premises, it may be sent by post to those premises or addressed by name to the person on whom it is to be served and delivered to some responsible person who appears to be resident or employed in the premises. This has been interpreted as limiting service to those premises where the notice alleges a contravention by a person subject to a duty specifically imposed on an occupier. It is not enough that the person is in fact the occupier of those premises and has contravened a relevant statutory provision1.
12. There are general statutory restrictions in place to prevent the reporting and publication of alleged offences or criminal proceedings which could reveal the identity of a person under 18 years of age2. The restrictions apply to press releases and publicly accessible databases (eg the HSE notices database).
13. Where a notice is served on a person under the age of 18, the inspector must advise FOD Legal and Enforcement in writing, so that the name of the young person is omitted from the entry on the notices database.