WHEN THE HEALTH & SAFETY INSPECTOR CALLS

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WHAT ARE THE POTENTIAL IMPLICATIONS OF A VISIT FROM A PUBLIC HEALTH & SAFETY INSPECTOR AND HOW SHOULD I REACT?

Health and safety inspectors have wide ranging powers that can seriously disrupt your business.  So although it may seem an obvious thing to say, first and foremost offer them your full cooperation and ensure that, unless you are considering an appeal, you comply with any notices you are given, by the specified date, even if such a notice is given verbally. If breached, improvement and prohibition notices can result in fines of up to £20,000 and /or six months’ imprisonment.  In the Crown Court, the maximum is an unlimited fine and /or two years’ imprisonment.  If you are for any reason delayed in carrying out required actions, pre-empt the inevitable visit by getting in touch and requesting more time, but above all demonstrate in words and actions that you are eager to work with rather than against the inspector.

Health and safety inspectors have the power to issue an improvement notice if s/he believes that a person or business is breaching health and safety legislation, or there has been a contravention in circumstances that make it likely that it will continue or be repeated.   All that is required is a contravention of the law – such as an inadequate risk assessment – for an inspector to issue such a notice.  There is no requirement for a belief that there is an imminent risk of injury flowing from the breach.  However, where the inspector does consider that there is a risk of serious personal injury such as working at height where there is inadequate protection, or at an unguarded machine, s/he also has the power to serve a prohibition notice requiring that the activity be stopped until any contravention has been corrected.  

An improvement notice must identify the alleged contravention and specify the inspector’s reasons for believing there is a breach and it must require that the contravention be remedied within a specified period, which cannot be fewer than 21 days.  The notice may include directions as to the measures to be taken to remedy the contravention, but this is not an essential requirement.  Similar (but not identical) requirements apply to a prohibition notice.

It may be possible to persuade the inspector to vary the improvement notice, in terms of the remedial steps to be taken, or the timeframe in which to comply, or even withdraw it completely, but failing this a notice should be appealed if:

• The inspector has incorrectly interpreted the law, or exceeded their powers, i.e. the employer believes there has been no contravention

• The remedial actions required by the notice are not reasonable practicable

• The timeframe in which to comply is unreasonable

• The notice is technically flawed.

The appeal is made to the employment tribunal and must be received within 21 days.  Lodging an appeal will cause the suspension of the improvement notice until the outcome of the appeal is known.
If the appeal is in respect of a prohibition notice it will continue in effect, notwithstanding the appeal, unless the employment tribunal directs otherwise. 

Unless they are withdrawn or successfully appealed, improvement and prohibition notices appear on the HSE’s public register of enforcement notices.  To allow for the appeals process however, the notice will not be included until nine weeks after it was issued, however notices on the register will remain there for a period of five years.

When served with an improvement or prohibition notice an employer must either comply with its terms in full, or challenge it – either directly with the inspector, or formally by lodging an appeal.  It may be worth considering a challenge if the employer feels they are already doing enough to comply with the law, or what they are being asked to do is not reasonably practicable.