I was having a discussion last week with somebody about the official forms the HSE issue, Prohibition Notices, Improvement Notices and Fee For Intervention.

public register of enforcement

I was being asked:

  • Why you get one of these?
  • Can you appeal if you think it isn’t fair?
  • Can the HSE issue an improvement of prohibition notice and a Fee For Intervention or are they separate?

So this article looks at the Prohibition and Improvement Notices and gives you some Key Facts about both of them.

This week’s 2 recent HSE cases look at accidents where there was a lack of H&S management.

As ever, if you have a subject that you would like us to cover one week, please contact us by phone 01458 253682, email or via our Facebook page or by Twitter.

Some Key Facts about Prohibition Notices

A Prohibition Notice is a formal document that can be served by any inspector appointed under the Health and Safety at Work (HSW) Act 1974 – so that means Health and Safety Executive (HSE) inspectors as well as local authority Environmental Health Officers (EHOs).

The Notice might be served on an individual, or the company, or both. Most commonly they are served on the employer, normally the company, or the person (e.g. supervisor) directly in charge of the work.

If you are sole trader or a partner, you can expect it to be served on you personally. If you are a partner, don’t forget to inform your fellow partners, as in law partners are jointly and severally liable for the partnership’s affairs.

The Notice confirms the inspector’s view that you are carrying out an operation where there is an imminent risk of serious personal injury and that you must stop it immediately − until you have taken remedial action (this might be repairs or the implementation of specific safety precautions).

Examples would include:

  • use of unguarded machinery,
  • live working on electrical equipment and
  • work on a fragile roof without use of suitable crawling boards.

The notice will make it clear what action you should take. So, for example, work on the fragile roof would be allowed to continue once the required crawling boards were made available and put into use.

Breach of legal requirements is not required for the inspector to serve a valid Prohibition Notice on you, but if he/she believes you are breaching the law (and if you are creating an immediate danger it’s likely to be contrary to at least one piece of health and safety law), that should be stated in the notice.

Prohibition Notices normally take effect there and then but in some circumstances they can be ‘deferred’, for example, if the risk is not imminent, or if it would cause a greater danger to shut down a process straightway. Either way, the notice will make it clear, and if you are in any doubt, check with the inspector. But there is no period of grace to comply, as would be the case with an Improvement Notice.

If you wish to appeal to the Employment Tribunal, you have 21 days to do so. Should you appeal though, the Notice remains in force until the Tribunal hearing. The Tribunal then has the power to reject, uphold or amend the Notice.

If you appeal, the tribunal will focus on whether the Notice was lawfully served. For example, was the inspector correct to believe there an imminent risk of serious personal injury?

Since the key word is ‘risk’ (= potential danger), you could not use the fact that no accident had occurred as grounds for appeal.

It is a criminal offence to fail to comply with a Prohibition Notice. Courts tend to punish these cases severely as they take the view that since you’ve been given the opportunity to comply, the fact that you haven’t is a serious matter – especially as by definition, there was imminent danger.

You can therefore expect the fine to be higher than if no Notice had been served. You should certainly take legal advice if there is any likelihood of prosecution.

If your enforcing authority is the HSE, you can also expect to be invoiced for the inspector’s time at the current rate of £124 per hour under the HSE’s ‘Fee for Intervention’ (FFI) scheme. This is quite separate from any fines or court costs that may be imposed and applies whether or not you comply with the Notice.

But, as with an Improvement Notice, you can minimise these costs by complying quickly and hence not making the inspector spend more time with you than is necessary!

You can resume work as soon as you have taken the action the Notice requires you to take, even though the inspector has not yet visited to check. Do though be very clear (by asking the inspector if necessary) that what you plan will be accepted, because not complying is such a serious matter. The outcome to avoid at all costs is that you resume work believing you’ve complied but the inspector doesn’t agree – leaving you facing the very serious charge of ‘not complying with a Prohibition Notice’ contrary to s.33 of the HSW Act. Wherever possible, therefore, it’s smart to wait for the inspector to confirm that what you’ve done is OK before resuming the prohibited activity.

Some Key Facts about Improvement Notices

Improvement noticeAn Improvement Notice is a formal document that can be served by any inspector appointed under the Health and Safety at Work (HSW) Act 1974 – this means Health and Safety Executive (HSE) inspectors as well as local authority Environmental Health Officers (EHOs). A letter from the inspector recommending you make an improvement is not in itself an Improvement Notice.

The Notice might be served on an individual, or the company, or both. Most commonly, they are served on the employer, normally the company. If you are sole trader or a partner, you can expect it to be served on you personally. If you are a partner, don’t forget to inform the other partners as in law, partners are jointly and severally liable for the partnership’s affairs.

The Notice confirms that in the inspector’s view, you are not complying with a relevant piece of health and safety legislation. This could be the HSW Act itself, or regulations made under it such as COSHH (substances hazardous to health) or RIDDOR (accident reporting).

The notice must spell out what this breach is, for example,

The Notice does not necessarily imply there is an imminent risk of serious personal injury; indeed, if there had been, the inspector would probably have served a Prohibition Notice on you instead.

Improvement Notices always give you a period of grace in which to comply. This has to be at least 21 days and is often a lot more. Before the Notice is served, try to agree with the inspector what would be a realistic deadline for you to complete the work. If you later find you need an extension to the time allowed, you can try asking for one but you’ll need to do so before the original time given runs out.

21 days from the date of the Notice is also the timeframe in which you can appeal to an Employment Tribunal if you want to. After that, it’s assumed you’ve accepted it. Putting in an appeal temporarily suspends the Notice until such time as the tribunal hears your case.

If you appeal, the tribunal will focus on whether the Notice was lawfully served. Your best chance of success therefore lies in finding something that is wrong with it in law. For example, the inspector does not have jurisdiction (e.g. an EHO serving a notice on a factory – unlikely but possible) or has misunderstood the law (again, unlikely but possible). You might want to take legal advice to help you here.

  • In one case, a company was served with a Notice requiring everyone to be issued with safety shoes. The company proved that the cost was grossly disproportionate to the risk and hence compliance was not ‘reasonably practicable’ and the Notice was dismissed.

But don’t expect the fact that you are unhappy about it, or that it will cost you to comply, or that you are only a small company, to carry much weight with the tribunal.

Once the period of grace has run out, you can be prosecuted both for the offence itself and for the separate offence of not complying with the Notice − if you have not rectified the breach. Courts tend to punish these cases quite severely as they take the view that since you’ve been given the opportunity to comply, the fact that you haven’t is a serious matter. You can therefore expect the fine to be higher than if no Notice had been served. You should certainly take legal advice if there is any likelihood of prosecution.

If your enforcing authority is the HSE, you can also expect to be invoiced for the inspector’s time at the current rate of £129 per hour under the HSE’s ‘Fee for Intervention’ (FFI) scheme. This is quite separate from any fines or court costs that may be imposed and applies whether or not you comply with the Notice. But you can of course minimise these costs by complying quickly and hence not making the inspector spend more time with you than is necessary!

The Notice will say in general terms what you need to do to comply, but how you do so is up to you. This means you can chose what you think is the best method − perhaps the one most cost-effective for you. Inspectors are not your health and safety consultants and won’t give you detailed advice, but it is worth finding out whether they are likely in principle to accept the action you intend to take. Find out if there is any relevant official guidance − that will give you a good indicator of the standard expected and also practical tips on how to comply. Above all, you don’t want to end up with the situation where you think you’ve complied but the inspector doesn’t agree – that could lead to criminal proceedings for breach of the Notice as outlined above, as well as to extra FFI costs if your enforcing authority is the HSE. Nor do you want to do more than you really need.

 If you would like any further help or support, please please contact us by phone 01458 253682, email or via our Facebook page  or by Twitter.

Taunton & Somerset CPD Group at The Exchange House Taunton

Please note our new venue.Exchange House

Having held last week’s seminar at the Exchange House and received favourable comments so from now on we are intending to run these CPD events at the Exchange House, 12 – 14 The Crescent, Taunton TA1 4EB.

The next of the CPD events is listed below.

As previously requested, if you could let us know whether or not you can attend it would be greatly appreciated. Also, if you would like to give a talk, or know of somebody who would, please contact Jon at [email protected]

Our next Seminar will be on 21st March 2018. Could you please arrive by 12:30pm prompt.

Our speaker for this one is Nick Hunt of Cupa Slate to talk about Specifying Natural Roofing Slate.

If you haven’t already booked your place, or if you are not on the CPD Seminar mailing list but would like to be please drop Jon an email and he will deal with your request.

As per our last one if you could let Jon know whether or not you can attend within 7 days of receipt of his email, it would be greatly appreciated.

Advance notice of next seminars:

April Seminar 0n 11th April will be Amwell Systems Ltd with their recently updated RIBA approved CPD Innovation in Flush Fronted Washrooms.

Contact Details [email protected], 07831 714199 or 01458 253682.

Training Courses

We shall be running new courses again in 2018 and the dates and details of forthcoming courses will be published here each week.Health and Safety

But remember we are still available for running “In House” courses and are looking to add new training courses to our list.

If you have any questions about these courses or any other training or would like us to run a particular course for you, call Jon Wilkins of the Wilkins Safety Group on 01458 253682 or email him at [email protected]

You will note that one of these courses is the 2-day Level 2 course in Supervising Staff Safely which you and your managers should attend in order to help you manage your safety properly!

Courses available for booking now

Training Courses

We shall be running new courses again in 2018 and the dates and details of forthcoming courses will be published here each week.Health and Safety

But remember we are still available for running “In House” courses and are looking to add new training courses to our list.

If you have any questions about these courses or any other training or would like us to run a particular course for you, call Jon Wilkins of the Wilkins Safety Group on 01458 253682 or email him at [email protected]

You will note that one of these courses is the 2-day Level 2 course in Supervising Staff Safely which you and your managers should attend in order to help you manage your safety properly!

Courses available for booking now