HSE's role as a market surveillance authority
Public authorities, such as the Health and Safety Executive (HSE), are responsible for monitoring the safety and conformity of products against product supply law. This is known as market surveillance.
HSE is one of the UK's market surveillance authorities, which monitor and enforce legal requirements on the safety (including risks to health) of most products used at work. This work is done 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 with the safety of consumer products.
What does HSE do in the field of product safety?
Various UK market surveillance authorities have obligations to 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 by design of most products used at work in Great Britain (HSENI acts similarly in Northern Ireland). HSE allocates resources to carry out both proactive market surveillance, and reactively to investigate issues of concern with the design and construction of products which fall within HSE's enforcement remit.
HSE's policy on market surveillance
HSE will do market surveillance work following the same principles and policy as 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 CE marking, missing documentation). However, these activities may not be treated with the same urgency as high-risk issues and, if the parties involved co-operate, HSE can usually deal with such administrative issues without formal enforcement action.
Enforcement by HSE
HSE's product safety investigation and enforcement powers are broadly similar to, and arise from, those given by the Health and Safety at Work etc Act 1974. 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. They can also direct – usually through formal Enforcement Notices – that an activity such as the supply of a product presenting serious risk of injury is stopped immediately, or that improvements are made by a specified date.
For the most recent product legislation (not machinery) these powers include those for requiring compliance, withdrawal and recall from the market. 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.
HSE may instigate proceedings in the magistrates' court, although this is usually reserved for the most serious matters or where Enforcement 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. Many 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 (by Crown courts).
Decisions on enforcement are guided using the principles of HSE's Enforcement Management Model, following HSE's Enforcement Policy Statement and taking full account of the Code for Crown Prosecutors.
How does HSE do market surveillance?
HSE has a number of small, teams of inspectors and administrative staff, supported by senior managers, who do product safety and 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 the lead government departments, 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, often through HSE's Science Division at the Health and Safety Laboratory (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 a matter for HSE (it may just be a case of failure to maintain or the result of subsequent modification, or for another authority to consider). 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 user and 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 if so, with what urgency and resources, and then take appropriate action. It should be noted that some product safety issues can take months, or even a year or more, to fully resolve where products require extensive redesign and manufacturing changes. These initial decisions may be reviewed as the investigation proceeds. There can be circumstances where it would not be in the public interest to use 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 correspondence.
Where a product safety matter has been investigated, a record will normally be made on HSE's main database, particularly if significant advice has been given or formal action taken. In addition, HSE may notify the Office for Product Safety and Standards (and where required, the Secretary of State through the relevant BEIS official) of the activity and non-compliances found.
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 or notices may be issued by HSE through its Safety bulletin site, to which anyone can subscribe and receive automatic notifications.
Co-ordination of market surveillance activity
Where appropriate, HSE works in co-ordination with other market surveillance authorities and with border control authorities. This may be in reaction to issues arising from incidents and information received, as well as from following proactive work programmes.