HSE's role as a market surveillance authority
The UK has left the EU, and some rules and procedures have changed from 1 January 2021.
Public authorities, such as HSE, are responsible for monitoring the safety and conformity of products against product supply law. This is an activity known as market surveillance.
HSE is one of the UK's market surveillance authorities, which monitors and enforces legal requirements on the safety (including risks to health) of most products used at work. This work is undertaken in addition to HSE's other functions, including its traditional role as a workplace health and safety regulator. Other UK market surveillance authorities such as trading standards, which are locally based, deal mainly with the safety of consumer products - although they take the lead role (instead of HSE) on the safety of some products used at work.
What does HSE do in the field of product safety?
A number of UK bodies have obligations to organise and undertake market surveillance to protect the interests of product users, and to ensure the operation of the market. HSE contributes to this by leading on the monitoring of the health and safety of most products used at work. HSE allocates resources to undertake both reactive and proactive market surveillance.
Investigation of product safety issues may be undertaken in response to concerns about products, which fall within HSE's enforcement remit when raised by users or regulators, including as a result of HSE’s workplace inspection and investigation activities.
Proactive market surveillance is also undertaken on selected products based on the level of risk involved. This is sometimes undertaken in co-operation with other market surveillance authorities (eg trading standards services), in order to apply the requirements of product supply law in a consistent and co-ordinated way.
HSE's policy on market surveillance
HSE will undertake market surveillance work following the same principles and policy as it does for its other activities, acting independently, impartially and proportionately on the basis of risk. This may also include taking appropriate action in cases of lower risk, where inaction could undermine the integrity of the system for product safety (eg incorrect marking, missing documentation). However, these activities may not be treated with the same urgency as high-risk issues and, if co-operation is given by the parties involved, such administrative issues can usually be dealt with without formal enforcement action.
Enforcement by HSE
HSE's product safety powers (eg to permit investigation, enforcement and prosecution) are broadly similar to, and mostly arise from, those given by the Health and Safety at Work etc Act 1974, in particular Notices to require Improvements and Prohibit activities. Additionally specific product supply Notices to require Compliance, Withdrawal from the market, and Recall were provided by the newer product supply law (from 2016). All warranted HSE staff may exercise these powers in accordance with the law and HSE's own procedures.
HSE can investigate product safety issues, requiring co-operation and information from those who may be involved. HSE inspectors can require that a product is left undisturbed or take possession of dangerous products, and can direct - usually through the above formal Enforcement Notices - that an activity such as the supply of a product is stopped immediately, or that improvements for compliance are made by a specified date. Those who are served these Notices may appeal to the Employment Tribunal. HSE can apply to the courts to request the forfeiture of certain products, subject to the court's ruling following judicial consideration of the facts, and the courts can in certain circumstances make an order for reimbursement of any expenditure incurred during the investigation of an offence.
HSE may instigate proceedings in the magistrates' court, although this is usually reserved for the most serious matters or where Notices have not been complied with. Penalties for proven breaches of the law are mostly financial and subject to the same principles as for other health and safety matters. Costs may be awarded by the court to HSE. As most substantive offences under UK product safety law are triable either way - meaning they can be heard at either magistrates' or Crown court - unlimited fines may be imposed on those found guilty.
How does HSE undertake market surveillance?
HSE has a number of small, geographically-dispersed teams of inspectors and administrative staff, supported by senior managers, who undertake product safety / market surveillance work on behalf of the organisation.
They are supported by policy staff who maintain contact with the other market surveillance authorities in the UK, and by specialists in key areas - particularly mechanical, electrical and control systems safety. Other specialists can also be called upon and, where necessary, research and testing can be commissioned, usually through HSE's Health and Safety Laboratory (HSL) at Buxton. In some cases, HSE works with officials from other market surveillance authorities, and those responsible for border control.
All HSE visiting staff may act in an 'eyes and ears' role when visiting workplaces. However, unless part of a specific proactive market surveillance project, they will only normally raise matters of concern arising during inspections and investigations.
A limited amount of proactive market surveillance is also undertaken by operational policy and specialist staff, for example at trade shows or to undertake specific market surveillance projects.
When product safety issues are found or raised with HSE, they are forwarded to the relevant product safety team, which firstly considers whether it is actually a product safety issue and so a matter for HSE (it may just be a case of failure to maintain or the result of subsequent modification). If not, it may be referred back to the issue originator or forwarded to the relevant authority. To enable this, it is important that those raising product safety issues provide sufficient background information. Immediate issues of serious risk with a product at a user's site should be dealt with by the operational team responsible for workplace health and safety at that site.
If the issue is a product safety matter and within HSE's remit, the product safety team will then consider whether the matter requires follow-up, and with what urgency and resources.. These initial decisions may be reviewed as the investigation proceeds. There can be circumstances where it would not be in the public interest to expend significant or even minor resources, whereas other matters may rightly take the team's full attention. There are also circumstances where the matter can be reasonably concluded through an exchange of correspondence.
Where a product safety matter has been investigated, a record will normally be made on HSE's main record database, particularly if significant advice has been given or formal action taken. In addition, HSE may create an entry on dedicated market surveillance systems for recording and sharing information about market surveillance activity with other market surveillance authorities and the Secretary of State. This helps to avoid unnecessary duplication of effort and improves consistency in this work.
Communication: Safety bulletins
In some cases - where serious defects with products are found - users, suppliers, manufacturers and others need to be swiftly informed. Safety Alerts / Notices may be issued by HSE through our Safety bulletin site, to which anyone can subscribe and receive automatic notifications, This may be in addition to the actions imposed by product legislation on individual economic operators to help avert risk (eg manufacturer’s recalls or revisions of information for use, by direct communications or adverts etc).
Co-ordination of market surveillance activity
Where appropriate, HSE works in co-ordination with other market surveillance authorities (MSAs) with UK border control authorities, and other stakeholders such as industry bodies, unions. This may be in reaction to issues arising from incidents and information received, as well as from following proactive work programmes.