Where a business neglects its duties, enforcing agencies are able to utilise improvement and/or prohibition notices to enforce health and safety laws against it.
It is important for an employer to be aware of improvement notices and prohibition notices (collectively referred to as “enforcement notices”) for the following reasons: firstly, enforcement notices can severely disrupt business activities (albeit for understandable reasons which we discuss below) and secondly, the penalty for non-compliance with enforcement notices includes criminal prosecution. The Health and Safety Executive (HSE), the central enforcing body for health and safety laws in England and Wales, also publishes details of all the notices served and “names and shames” the criminal convictions online. Given the scrutiny that can follow, enforcement notices can have a significant impact on a business.
In this article, we provide guidance on the main features of the two types of enforcement notices, the consequences of non-compliance with an enforcement notice and how to appeal an enforcement notice.
Improvement notices (section 21 of HSWA 1974)
An improvement notice is a formal document served by an enforcing authority (e.g. a local authority or the HSE) where an inspector considers that a business or an individual is operating in breach of health and safety laws or has operated in breach of health and safety laws in circumstances that make it likely that the breach will continue or be repeated. An improvement notice requires the recipient to take steps to rectify the breach and will often specify the steps required to be taken.
The notice should:
- state that the inspector is of that opinion;
- specify the health and safety law in question;
- give particulars of the reasons why the inspector is of that opinion;
- require the person to remedy the breach or the matters occasioning it; and
- specify the period for compliance. This should be not less than 21 days from the date the notice was served.
The notice should not direct a duty holder to go beyond what is legally required of them.
Prohibition notices (section 22 of HSWA 1974)
A prohibition notice can be served by an inspector where there is reason to believe that activities are being, or are likely to be, carried on that involve a risk of serious personal injury. Such notice may require an immediate cessation of the unsafe activity.
A prohibition notice should direct that the activity should not be carried on by or under the control of the person on whom the notice is served unless the matters giving rise to the inspector’s opinion have been remedied.
If you receive any enforcement notice, it is important that you fully understand the breaches identified, the remedial actions required, and the compliance period provided. Seek clarifications from the inspector if anything is unclear.
Fees for intervention
Businesses who receive enforcement notices will also be liable to pay a “fee for intervention” (FFI). This is because the HSE has a legal duty to recover any costs they incur associated with material breaches of health and safety law, including the costs associated with the inspection that identified the breach and any subsequent interventions. Any breach which results in the HSE issuing an enforcement notice would be considered a material breach.
Consequences of non-compliance with enforcement notices
Failure to comply with an enforcement notice is a criminal offence and can be punishable by way of fine and/or imprisonment. Non-compliance is therefore serious and can also tarnish the reputation of your business.
How to challenge an enforcement notice
Upon receiving an enforcement notice, you have the right to challenge it by way of an appeal to the Employment Tribunal within 21 days of service (see section 24 of the HSWA 1974). It is important to act fast as an improvement notice becomes effective from the date specified in the notice and a prohibition notice typically becomes effective immediately. However, filing an appeal automatically suspends an improvement notice while the appeal is pending and, in the case of a prohibition notice, the employment tribunal may direct that it similarly suspended. Where enforcement notices are suspended, you do not have to comply while the suspension is in place.
If the appeal is successful, the notice can be cancelled, confirmed or modified.