HSE's role as a market surveillance authority
Brexit: Transition period
The UK has now left the EU. Your health and safety responsibilities have not changed in the transition period.
Public authorities, such as HSE, are responsible for monitoring the safety and conformity of products against European 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 (eg personal protective equipment).
What does HSE do in the field of product safety?
All European member states have obligations to organise and undertake market surveillance to protect the interests of product users, and to ensure the operation of the EU free market. HSE contributes to this by leading on the monitoring of the health and safety of most products used at work in the UK. 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, regulators, or as a result of information received from the European Commission or other member states.
Proactive market surveillance is also undertaken on selected products based on the level of risk involved. This is often done in co-operation with other European market surveillance authorities, in order to apply the requirements of European product safety 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 European 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 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 enforcement powers are broadly similar to, and arise from, those given by the Health and Safety at Work etc Act 1974. 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 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. 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 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 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).
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 throughout Europe, 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 agency, the Health and Safety Laboratory (HSL). 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 database COIN, particularly if significant advice has been given or formal action taken. In addition, HSE will create an entry on ICSMS, the European system for recording and sharing information about market surveillance activity. The primary purpose of this database is to inform other market surveillance authorities throughout Europe of the products considered and action taken. This helps to avoid unnecessary duplication of effort and improves consistency in this work.
Where action is taken to prohibit or restrict the free movement of goods, all member states are under an obligation to formally report this promptly to the European Commission. This is known as the safeguard action.In the UK, this is done in cooperation with BEIS (Department for Business, Energy & Industrial Strategy) and sent to the European Commission in Brussels.
In the case of machinery, the information submitted is investigated by the Commission and a decision taken, confirming whether the action taken by the market surveillance authority was correct. The formal decision is then communicated to other member states so that, where justified and confirmed, they can take effective action to protect end users of products and ensure the EU free market is protected.
For most other products, the information is passed on by the Commission (where appropriate using the ICSMS data system) to the other member states so they can take action. However, unlike with machinery, investigation of the issue by the Commission normally only takes place when this is requested by another member state registering an 'objection'.
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 its Safety bulletin site, to which anyone can subscribe and receive automatic notifications.
In the field of consumer safety there is also a web-based communication system called RAPEX by which, principally, other regulators across Europe are rapidly informed of issues with consumer products. The RAPEX system is likely to be extended to cover industrial goods. However, until RAPEX is extended, all identified dangerous industrial goods should be notified to BIS, who will then inform the EU Commission, and the information will also be passed on to all other member states.
Co-ordination of market surveillance activity
Where appropriate, HSE works in co-ordination with other market surveillance authorities (MSAs) both in the UK and Europe, and also with UK border control authorities. This may be in reaction to issues arising from incidents and information received, as well as from following proactive work programmes. Both the RAPEX - for rapid information exchange on dangerous products - and ICSMS - for sharing information about market surveillance activity - systems are used.
In addition, various informal and formal links are maintained, particularly the meetings held each year where representatives from the various European MSAs discuss live issues and agree collective action, including proactive work programmes. The European Commission has active involvement in many meetings and can be requested to rule on matters of interpretation with regard to specific requirements of product safety law.