Health and Safety Executive/Local Authorities Enforcement Liaison Committee (HELA)

To: Directors of Environmental Health/Chief Environmental Health Officers of London, Metropolitan, District and Unitary Authorities and Chief Executives of County Councils.

For the attention of: Environmental Services/Trading Standards/Fire Authorities/Other

This circular gives advice to local authority enforcement officers

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Choice of appropriate enforcement procedure

Introduction

1 The HELA statement on enforcement policy (see Appendix 1), which has been commanded for the use of all local authorities, places emphasis on the variety of means available to local authorities to ensure that employers meet their responsibilities under the Health and Safety at Work etc. Act 1974 and its relevant statutory provisions.

Background

2 If the credibility of health and safety enforcement is not to be undermined, local authorities must ensure that enforcement is proportional to the risks involved. Management systems play an important part in ensuring that enforcement is carried out in a way consistent with the Council's own policies; and that such enforcement is proportional to risk. Local authorities should ensure that adequate management systems are established and maintained to achieve these objectives.

3 Compliance should normally be achieved through letters and advice; and only in the more serious instances should formal enforcement through improvement or prohibition notices be considered. Local authorities are encouraged to reserve prosecutions for the most serious offences which either result or could have resulted in serious injury or ill health or which represent a blatant disregard by employers, employees or others of their responsibilities under health, safety, or welfare legislation.

Formal enforcement procedures under HSWA

4 Before taking formal enforcement action it is advisable in all cases to take into account the employer's general attitude to health and safety. If it is largely a question of getting a normally well conducted business to take action on one or two isolated matters advice should suffice. If, however, the business is a regular offender or has no effective organisation for health and safety, formal enforcement action may be necessary.

5 Only authorised inspectors have the power to issue improvement or prohibition notices or to prosecute. Formal enforcement action is taken on behalf of the local authority as the enforcing authority and LAs should therefore ensure that all authorised officers have the necessary competencies.

Notice or prosecution

6 An Improvement Notice can be issued only when the enforcement officer thinks that there is a contravention of one of the relevant statutory provisions at the time of the visit or that there has been such a contravention and that it is likely that the contravention will continue or be repeated. Prohibition Notices can be issued to have immediate or deferred effect. The notice can be served only if the enforcement officer thinks that there is, or will be, a risk of serious personal injury. There does not have to be a breach of any statutory requirement before a prohibition notice can be issued but an officer who thinks there has been should specify it in the prohibition notice. The ultimate sanction available to the enforcement officer is prosecution. The court can also make an order for the remedying of a defect.

7 The issue of choice may arise where it is necessary to provide something, eg a guard, or a safe system of work. The notice procedure can have an immediate impact, whereas a prosecution may not be resolved for several months. On the other hand in the long term the notice procedure alone may prove ineffective if a person knows that the only consequence of an unsafe practice such as failure to keep floors unobstructed or free from substances likely to cause persons to slip will be a requirement for them to do something which they should have done in the first place.

8 In certain situations both prosecution and notice procedures may be appropriate:-

(a) occasionally a situation may be so hazardous that even when a prohibition notice has been issued prosecution may also be merited; and

(b) it a prosecution is taken owing to the circumstances of an accident. a notice may also be used to enforce the remedy.

In these situations the information should not be laid until after the appeal period for the notice has passed (21 days) and any appeal has been heard. It is highly undesirable that there should be a hearing in a court where a possibly contrary decision could be reached subsequently in the Employment Tribunal. On occasions, however, this will be unavoidable where a tribunal has agreed to accept a late appeal.

Prosecution

9 Serious offences for which a prosecution would be appropriate are illustrated by the following examples:

1. where there is a blatant disregard for the law, particularly where the economic advantages of breaking the law are substantial and the law abiding are placed at a disadvantage to those who disregard it;
2. when there appears to have been reckless disregard for the health and safety of workpeople or others:
3. where there have been repeated breaches of legal requirements in an establishment, or in various branches of a multiple concern, and it appears that management is neither willing nor structured to deal adequately with these. An examination of the company safety policy, if any, would be particularly useful in such a situation;
4. where a particular type of offence is prevalent in an activity or an area;
5. where, as a result of a substantial legal contravention, there has been a serious accident or a case of ill health;
6. where a particular contravention has caused serious public alarm;
7. where there are persistent poor standards for control of health hazards.

The decision to prosecute in the above cases does not preclude the issue of notices as well.

10 A prosecution should not be taken where there is a known defence in law. Equally, cases should not be taken unless inspectors consider they have sufficient evidence to prove the case. Enforcement officers need to bear in mind that criminal cases require sufficient evidence to prove the case. Enforcement officers should include evidence in their prosecution reports to show that the defendant had failed to take reasonable steps to prevent the contravention. These principles apply also in Scotland although the Procurator Fiscal decides whether legal proceedings should be taken.

11 In deciding whether there is sufficient evidence officers should satisfy themselves that there is a realistic prospect of conviction; a bare prima facie case is not enough. However, where the circumstances justify prosecution, it should be avoided just because the case is difficult and a conviction may not be completely certain. (See Code for Crown Prosecutors (Jan 1992) Crown Prosecution Service.)

12 A prosecution which attracts local publicity can often have a salutary effect on other occupiers as well as on the prosecuted. It is therefore often effective to concentrate for a short while on offences of a particular kind through local initiatives, but each prosecution must be justified on its own facts.

Prosecution on indictment

13 In deciding whether to recommend prosecution on indictment (solemn procedure in Scotland), the enforcement officer should consider:

1. the gravity of the offence;
2. the adequacy or otherwise of the powers of the summary court to punish the offence;
3. the record of the offender (but this may not be presented to the court as a reason for trial on indictment - See R v Colchester Justices ex parte North East Essex Building Co. Ltd (1977).
4. the offender's previous response to advice or other enforcement
5. any circumstances causing particularly great public alarm.

14 However, it must always be remembered that this method of enforcement is especially time-consuming and expensive. Prosecution on indictment should never be recommended if a summary prosecution or the issue of an enforcement notice would suffice.

Prosecution without prior warning

15 As a general rule a person or a company should be given a reasonable opportunity to comply with the law, although in some circumstances it is right to prosecute without giving prior warning. Examples of such circumstances include those where the contravention is a particularly serious one, or where there has been a particularly blatant disregard by employers, employees or others of their responsibilities under health and safety legislation. For example, the commission of an offence, similar to one for which a notice has previously been issued to that person or organisation, should normally result in prosecution. Failure to comply with an Improvement Notice or a Prohibition Notice should normally result in prosecution, and unless this happens the value of notices will be seriously undermined.

Prosecution following an accident

16 The seriousness of the contravention (not the severity of the accident) is the prime consideration in deciding whether to take a prosecution following an accident. The extent to which management was responsible for the circumstances which led to the accident, and whether the employer had been previously warned of a similar infringement, are also relevant. An important question for inspectors to ask themselves is what they would have done if they had discovered the contravention in the absence of an accident. However, an accident may contribute to the strength of the evidence and therefore to the chances of achieving a successful prosecution, it may therefore provide a useful occasion for a salutary prosecution of a generally unco-operative employer.

Enforcement action against employees

17 Enforcement action may be taken against employees and others, including managers, company officers etc. under HSW Act s.7,8,36(1) and 37(1).

18 When enforcement officers discover a contravention of HSW Act s.7, it will be their duty to consider what action (if any) they should take in regard to the employee, by way of warning or prosecution. A letter warning an employee about subsequent contraventions may be desirable in some cases.

19 The issue of a notice against the employee may also be appropriate on occasions although the value of the notice is limited since in general a continuing obligation should not be imposed. For example, notices should not be served on employees requiring them to wear goggles. Not only can employees be required by HSW Act s.7(1) to use appliances provided for their health and safety, but they can be required to co-operate in a more general way, eg by adjusting a guard properly or by reporting promptly a defect in the arrangements for health and safety which comes to their notice.

20 Where the employer appears to be mainly to blame eg where a proper guard has not been provided, action should be taken against the employer alone. However, where the employer has provided a guard and taken steps to require its use, but it has not been used, some form of enforcement action against an employee may be appropriate. Consultation with workers' representatives is important at this stage. More often than not a warning will suffice or perhaps action through the workers' representative or a safety committee. Prosecution should be considered only if the employee had been warned before (either by an enforcement officer or by the business) or if the employer can demonstrate that he/she has taken all reasonably practicable steps to see that safety devices were used and the offence by the employee was flagrant.

Powers of enforcement officers

21 In addition to the broad range of enforcement action available to enforcement officers, duly authorised officers have in carrying out their duties a wide range of powers. This includes taking possession of articles or substances, and asking for articles to be dismantled or subjected to tests if there is a likelihood that they will cause a danger to health and safety. These powers are contained in HSWA section 20 (2) (h) and (i).

Formal caution procedures

22 The "formal caution" procedure is used by some local authorities. The procedure derives from advice issued by the Home Office and not by the Health and Safety Commission to HELA. For a formal caution to be issued a number of criteria must be satisfied:-

• the evidence available must comply with the Attorney General's guidelines on criteria for prosecution, ie a conviction should be more likely than an acquittal before a court;
• the offender must admit the offence;
• the offender must agree to be cautioned.

23 The view of HSE's Solicitor is that such a procedure is unnecessary given the range of other alternatives available to enforcement officers under HSWA. This procedure is not one which HSE uses.

24 In Scotland, the Procurator Fiscal decides whether in the particular case a formal caution should be issued rather than taking legal proceedings.

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Appendix 1

Local authorities' approach to enforcement

The following explanation of the approach by local authorities to the enforcement of health and safely legislation has been prepared by a Working Group of the Health and Safety Executive/Local Authority Enforcement Liaison Committee (HELA). HELA endorses the statement and commends it to all local authorities as a model for their own enforcement statement:

1. The primary responsibility for ensuring health and safety in the workplace lies with those who create the risks, and in particular employers need to recognise their responsibility for managing health and safety.

2. Local authorities' approach to enforcement reflects the responsibilities laid upon them by the 1974 Health and Safety at Work etc Act and the range of powers that Act made available. The types of premises and activities where local authorities enforce is determined by the Health and Safety (Enforcing Authority) Regulations 1989.

3. Depending on particular circumstances local authorities may use a variety of means to ensure that employers meet their responsibilities including education, advice, guidance, warning letters, improvement and prohibition notices or prosecutions. Local authorities will generally reserve prosecutions (and therefore criminal proceedings) for the more serious offences which either result or could have resulted in serious injury or ill-health or which represented a blatant disregard by employers, employees, or others of their responsibilities under health and safety legislation.

Enforcing health and safety law

4. Local authority enforcement officers' primary concern is the prevention of accidents and ill-health. This is best achieved by encouraging effective management of health and safety-by those who create the risks. Enforcement officers seek to help businesses improve their management of health and safety by giving guidance on prevention. They are a source of help on how best to maintain good standards in conformity with the law, and their guidance is usually followed.

5. Enforcement officers have to exercise considerable discretion when approaching individual employers. Most employers are, in local authorities' experience, anxious to comply with the law and a growing number realise the economic benefits of good health and safety management. In such cases an enforcement officer's role will often be to guide and support. However, in carrying out their functions duly authorised enforcement officers have a range of powers, and may for example in certain circumstances take possession of articles or substances; and may ask for articles to be dismantled or subjected to tests. If enforcement officers find evidence that the law is being broken they can respond in various ways. They may instruct or warn by letter, they may issue a prohibition or improvement notice requiring immediate compliance or compliance within a certain specified lime, or they may prosecute. Notices are effective and quick and require employers to put dangerous situations right, without the delay and uncertainty of going to court. For these reasons enforcement officers issue a number of notices every year. However, if the circumstances warrant it, they will prosecute without any prior warnings and without any recourse to alternative sanctions.

Prosecution to ensure prevention

6. In keeping with its preventive role a local authority may use prosecution as a way to draw attention to the need for compliance and the maintenance of good standards. Enforcement officers investigating breaches of the law consider their potential to cause harm as well as any harm actually caused. Thus a local authority may seek prosecution if a breach has significant potential for harm, regardless of whether it caused an injury.

7. In deciding whether to prosecute a local authority will also consider:

• the gravity of the offence;

• the general record and approach of the offender;

• whether it is desirable to be seen to produce some public effect, including the need to ensure remedial action and, through the punishment of offenders, to deter others from similar failures to comply with the law;

• whether the evidence available provides a realistic prospect of conviction. (in this respect a local authority is guided by the Code for Crown Prosecutors published by the Crown Prosecution Service.)

8. In England and Wales the decision to proceed with a court case rests with the local authority itself. In Scotland the Procurator Fiscal decides.

The prosecution of individuals

9. Sections 7, 36 and 37 of HSW Act allow for the prosecution of individuals who have committed a health and safety offence. Local authorities' policy is to identify and prosecute individuals if a conviction is warranted and can be secured. However, a health and safety offence is often the result of the negligent or ignorant acts of more than one person. This means it is difficult to prove a link between some incidents and individual directors, managers and employees. Nonetheless a local authority may still have the option of taking a case against a company instead of a named individual, and will seek to do so where the circumstances justify it.

Penalties

10. Penalties need to be commensurate with offences and the Robens report (Safety and Health at Work (Cmnd. 5034 1972)) made the point that enforcement required stiff penalties. The Offshore Safety Act 1992 made more stringent health and safety penalties available to Magistrates, Crown courts and their Scottish equivalents. In particular, breach of the core responsibilities set out in sections 2 to 6 of HSWA now attracts a £20,000 maximum fine on summary conviction. The importance of the enforcement notice was reinforced by providing a penalty of a £20,000 fine or six months imprisonment, or both, for non-compliance. (The new penalties structure is outlined in Appendix 1.)

Consistency of enforcement standards between local authorities and HSE and between individual local authorities

11. National arrangements exist through the Health and Safety Executive/LocalAuthority Enforcement Liaison Committee (HELA) for co-ordination on enforcement standards between local authorities and the Health and Safely Executive and between individual local authorities. HELA provides a forum for the development of consistent national advice and training for all local authorities on enforcement issues and for the production of industry specific guidance. It prepares an annual Report to the Health and Safety Commission on behalf of all local authorities who enforce the Health and Safety at Work Act. This report is published through HSE Books and provides local authorities with information about national trends in accidents in different industry sectors which enables them to target their enforcement resources to the areas of highest risk .

12. Every effort is made to ensure consistent enforcement standards between local authorities. However, local circumstances may preclude an entirely uniform approach on all issues, for example, differences in the mix of risks in employment may lead to different enforcement priorities being adopted by individual local authorities.

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Appenix 1 A

Penalties for conviction under the Health and Safety at Work etc. Act 1974 (HSWA) and relevant statutory provisions

Offences heard only in the lower courts		Maximum penalty
Breach of section 14 of HSWA, concerning the power of the HSC to direct investigation and inquiries. Preventing or attempting to prevent person from appearing before or answering any question put by an inspector (section 20(2) HSWA).	) ) ) ) ) ) ) )	£5,000 for offences committed on or after 1.10.92
Obstructing an inspector. Impersonating an inspector.
Offences which can be heard in all courts		Maximum penalties in the lower courts
Breach of HSWA not specified below, or of relevant statutory provisions under HSWA.	) )	£5,000 for offences committed on or after 1.10.92
Breach of sections 2 to 6 of HSWA.	) )	£20,000 for offences committed on or after 6.3.92
Breach of improvement, prohibition or court remedy order.	) )	£20,000 or 6 months imprisonment, or both for offences committed on or after 6.3.92
Offences which can be heard in all courts		Maximum penalties in the higher courts
Breach of HSWA not specified below, or of relevant statutory provisions under HSWA.	) )	Unlimited fine
Breach of prohibition order.	) )	Unlimited fine, or two years imprisonment, or both
Breach of an improvement order or court remedy order.	) ) ) )	Unlimited fine, or two years imprisonment, or both for offences committed on or after 6.3.92
Breach of a licence's terms and conditions or doing something without a licence for which one is necessary.	) ) ) ) ) ) ) )	Unlimited fine, or two years imprisonment, or both
Breach of any of the relevant statutory provisions concerning the acquisition, possession or use of an explosive article or substance.

Notes

1. The daily fine (previously in HSWA s33(5)) has been abolished.

2. There are a small number of offences in older relevant statutory provisions which attract a fixed penalty. As regulations are revised these penalties will be brought into line with the majority.

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