Enforcement decision - Stage 1 : Make enforcement decision - Additional guidance
Frequently asked questions on completing EMM1 forms
A: When the inspector/investigator is ready to make an enforcement decision and has sufficient information to support that decision.
The EMM1 form should be completed for all fatal accidents, major incidents, prosecutions and other specified cases. For a full list of when the EMM should be formally applied, please see:
Operational Procedures are currently under review across all Divisions/Directorates on when the form should be completed and staff will be informed of the outcome shortly.
Under no circumstances should the EMM be applied retrospectively, ie made to fit the enforcement action.
The EMM helps us follow HSC's Enforcement Policy Statement (EPS), which is the basis for all our regulatory/enforcement decision-making. The principles and structure and robustness of the EMM should formulate the thought process whenever we are making a regulatory enforcement decision. However, application of the principles and expectations of the EMM, and EPS, is not the same as the operational arrangements that we have in place to try to ensure consistency and a quality framework. This is the Enforcement Management Arrangements (EMA), which requires formal recording of regulatory enforcement decisions in certain cases. These include those where there is some concern that the possible action may not accord with the EPS, cases where there is a fatal or s14 inquiry and other investigations etc. Completion of the form facilitates management oversight, involvement and input into some of the regulatory enforcement decisions. Therefore, we use and apply the EMM (and EPS) to all our regulatory enforcement decisions, but we only record formally some of these decisions. We do this by way of selective sample, as set down in the EMA.
A: Where no risk gap has been identified in EMM Table 2.1 or 2.2, for risk-based issues, this suggests the duty holder is complying with, or exceeding the legal standard and therefore enforcement action should not be required.
However, this does not apply to compliance and administrative arrangements (EMM Table 4), ie where the legal requirement under consideration is not risk-based. In such cases there may be a breach of the law, despite there being no actual risk arising from the breach.
A: A risk gap is identified when the duty holder's actual risk falls below the benchmark standard, usually defined by specific legislation or ACOP. Where there are uncertain benchmarks, ie no legal standard or apparent guidance, inspectors should, where appropriate, apply first principles, the standard of which is classed as 'interpretative'.
There may be situations where the duty holder is complying with the law but a risk of injury still exists. In such cases no enforcement action would be required and EMM1 would not need completing beyond Section 3. A full description of the circumstances should, however, be included in Section 1.
When offering advice, inspectors should distinguish between statutory requirements and advice or guidance aimed at improvements above minimum standards, and that advice should be confirmed in writing if required.
A: Yes, the principles of EMA/EMM apply equally to Crown bodies, as they would do for any other corporation. The difference being, by virtue of HSW Act s.48(1), Crown bodies cannot be prosecuted for breaching health and safety law. Instead, HSE has the power to issue Crown censures and Crown improvement and prohibition notices. For further guidance on this, please see:
A: Where the application of EMM1 is mandatory, forms should be retained alongside other associated case documents, eg investigation report/prosecution report, copy of the enforcement notice.
A: Yes, whenever EMM1 is completed, the line manager must state whether or not they agree with the assessment and proposed action and sign and date the form accordingly. Any variance and the reasons for taking different action must be recorded.
A: The EMM is a simple two-dimensional linear model designed to aid consistency and so cannot truly capture all the nuances and complexities of discretionary decision-making in all circumstances. It is crucial that inspectors' discretion is not confined to the boundaries of the Model.
The management review process requires inspectors and line managers to consider whether the proposed enforcement action meets HSC's Enforcement Policy Statement, the Code for Crown Prosecutors in England and Wales and the Prosecutors Code in Scotland.
The management review box should be completed when:
- the expected enforcement action recorded on the form does not match the planned enforcement action to be taken by the inspector
- where guidance requires it, eg no prosecution following a work-related death, and
- when certain duty holder factors or strategic factors are not addressed or require further explanation.
A: Where it is appropriate to have a management review the inspector should complete the box following a discussion with their line manager, or anyone else consulted, on whether the proposed enforcement action meets the EPS, the Code for Crown Prosecutors in E/W and the Prosecutors Code in Scotland. Whenever a management review takes place, the reasons for the final enforcement decision must be clearly stated in the box.
A: It was decided to combine the line manager's assessment with the management review because both require the line manager's input. By signing at the bottom of the form the line manager is confirming that s/he agrees with the assessment and proposed enforcement action plan. It is therefore not necessary to have a separate box.
Q10: Should the EMM1 form be completed when the CPS, under recommendation from HSE, decides to prosecute for HSWA offences?
A: Yes, the EMM1 form should be completed whenever HSE recommends prosecution as a record of the thought process behind the decision. The occasions where the Crown Prosecution Service takes a health and safety prosecution is, generally, at the same time as prosecuting for manslaughter. In which case there has been a work-related death and it is mandatory to formally apply the EMM and, therefore, complete the form.
A: No. The form is not generated during the course of HSE's criminal investigations, but afterwards as part of the legal considerations. Therefore the form attracts immunity and legal privilege and should not be disclosed outside HSE.
A: Monitoring of EMM forms provides operational managers with a sample litmus test of how decisions are being made in their teams. Allowing inspectors' enforcement decisions to be sampled and reviewed by managers ensures consistency and fairness in their decision making process, particularly in challenging or sensitive areas. Immediate line managers (generally PIs) are continuously monitoring as they countersign each form, and therefore can build up a reliable picture of the decision-making skills of their team.
However, more senior line managers, such as Heads of Operations on FOD, should also monitor as appropriate, so they have a general appreciation of regulatory decision making within their commands, and also where there is concern that staff changes and resource constraints may impact on the level of expertise in this important area. Monitoring all forms for all inspectors should not be necessary.
A: Nothing. The form should still be retained as a record of our original enforcement decision.