Enforcement Notice Legal Advice
HSE Enforcement Notices
– Improvement and Prohibition Notices
HSE Inspectors have powers to issue enforcement notices under sections 21, 22 and 23 of the Health & Safety at Work, etc. Act 1974 (the HSWA). There are two types of enforcement notice - Improvement notices and Prohibition notices.
If you receive an Enforcement Notice, it can have a significant impact on your business. FSW can provide expert advice and guidance as to what steps you should take in dealing with the Notice. Please contact us by telephone on 0207 993 6960 or email Charlotte Waters.
HSE Improvement Notices
Where a HSE Inspector concludes that an organisation is contravening statutory Health and Safety provisions or has broken provisions in the past and is likely to contravene the provisions again in the future that may pose a risk to people they may issue an Improvement Notice. The reasons for the notice will be presented along with details of the particular provisions that are being contravened. The notice will specify the time frame for compliance which will be in excess of 21 days.
Prosecution can result if you fail to comply with an improvement notice.
HSE Prohibition Notices
A prohibition notice may be issued if the HSE Inspector believes that there is a risk of serious personal injury. Usually, the notice will require the relevant activity to be immediately stopped and will not resume until all corrective measures have been put in place. The notice will give full details of the activity and what constitutes a risk and which provision is being contravened.
Prosecution can result if you fail to comply with a prohibition notice.
Implications of HSE Enforcement Notices
Receiving an enforcement notice can have a huge impact on your business. There is potential damage to your reputation and also your ability to tender for work. A public register of Enforcement Notices is kept for 5 years. Some firms or authorities may not place contracts to companies who have been issued with a notice. There are also significant financial implications if certain plant or machines a not able to be used for a period of time.
Faling to appeal an enforcement notice might be argued in a subsequent prosecution that the duty holder accepts that there had been a breach of health and safety law. In the case of HSE v Evergreen Construction UK Ltd [2023] ECWA Crim 237 the Court of Appeal held that enforcement notices could amount to bad character evidence under section 98 of the Criminal Justice Act 2003 where the underlying facts that gave rise to the notices demonstrating “reprehensible conduct”.
Appealing Against an HSE Enforcement Notice
You have a right to appeal against an enforcement notice under section 24 HSWA to the employment tribunal. Under the appeals process an employment tribunal can cancel the notice or vary the terms of the notice. Since the decision of the Supreme Court in HM Inspector of Health and Safety v Chevron North Sea Limited [2018] UKSC7 there is now greater scope for appealing enforcement notices.
For Improvement Notices, the notice is suspended whilst the appeal process is conducted. For prohibition notices these will stay in place whilst the appeal is ongoing unless an application is made to the employment tribunal for a direction suspending the operation of the notice until the appeal is heard.
While there is an appeal the notice will not be entered on HSE’s Enforcement Notices Register.
Appeals must be submitted to the employment tribunal within 21 days of service (ie an appeal must be submitted by the 20th day following service). . It is therefore important to seek prompt legal advice
Fee for Intervention
When an enforcement notice is served a notification of contravention will also be sent to the recipient of the notice. This allows HSE to recover its investigation costs under the Fee for Intervention scheme (FFI). It is important that when an enforcement notice is appealed that the FFI invoices are also challenged under the FFI dispute process.
We Can Help
FSW can advise on the validity of a notice, the effect of the notice on your business operations, and provide representation at any appeal to the Employment Tribunal.
For more information on how FSW can make a difference to your Health and Safety issue, please contact us by telephone on 0207 993 6960 or email Charlotte Waters or Michael Appleby
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