What is an HSE enforcement notice?
HSE Inspectors have the power to issue HSE enforcement notices to prevent and/or stop unsafe workplace activities. HSE enforcement policy will typically apply when health and safety breaches are serious in nature and pose a significant risk to workers or the public.
Types of enforcement notices
Improvement Notices
Prohibition Notices
Enforcement Notices
Improvement notices
Section 21 HSWA states that, where an inspector is of the opinion that a person is contravening one or more of the relevant statutory provisions, or has contravened one or more of those provisions in circumstances that make it likely that the contravention will continue or be repeated, s/he may serve an improvement notice.
The notice should:
- state that s/he is of that opinion
- specify the provision(s) in question
- give particulars of the reasons why s/he is of that opinion
- require the person to remedy the contravention or the matters occasioning it, and
- specify the period for compliance, which should be not less than 21 days from the date of service of the notice, being the period in which the recipient of the notice may lodge an appeal with the employment tribunal.
An improvement notice cannot be used to require a duty holder to do something which has no attainable end within the compliance period. For example, a notice might require a duty holder to provide, by a given date, a guard on a dangerous part of machinery but it cannot require the person to maintain the guard in good condition as this would be an ongoing requirement. A notice can, however, properly require that, by the given date, a suitable system is put into place to ensure that the guard is maintained in an efficient state, efficient working order and good repair.
When an improvement notice is served, there should be a discussion with the duty holder about the notice and how s/he can comply with it. An effort should be made to resolve any points of difference.
The notice should not direct a duty holder to go beyond what is legally required of them. You may put any such advice in a covering letter, making it clear that it is guidance and does not form part of the notice.
If an appeal is brought against service of an improvement notice, the operation of the notice is suspended until the appeal is either heard or withdrawn.
Prohibition notices
Provisions relating to the service of prohibition notices are set out in sections 22 and 23 HSWA. Prohibition notices may be served in relation to activities which are being, or are likely to be, carried on, and to which any of the relevant statutory provisions apply (or will apply).
Section 22 allows an inspector to serve a prohibition notice on a person if s/he is of the opinion that an activity carried on (or likely to be carried on) by or under the control of that person involves (or will involve) a risk of serious personal injury
A prohibition notice should:
- state that the inspector is of the above opinion
- specify the matters which in his/her opinion give, or will give, rise to the risk
- 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
A lack of commonly expected precautions (e.g. properly qualified persons) may justify an opinion that there is a risk of serious personal injury where other factors, which could have reduced the level of risk, are also absent.
Where an inspector is of the opinion that the activity involves a contravention of any of the relevant statutory provisions, the prohibition notice should:
- state that s/he is of that opinion
- specify the provision(s) being contravened
- give details of the reason(s) why s/he is of that opinion
The requirement that an activity should not be carried on until specified matters have been remedied may either take effect immediately or be deferred until the end of a specified period.
A prohibition notice may be served on any person in control of a process or a piece of plant subject to the relevant statutory provisions. This includes an employee who may not be aware that the activity is unsafe and is acting in accordance with his/her employer’s instructions. In such circumstances, the employer should be contacted to advise them of the situation and the proposed notice. The inspector may consider serving a notice on both employer and employee.
