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Health and Safety at Work Enforcement & Prosecution
Guidelines
Aim of Guidelines
To ensure a consistent approach to health and
safety at work related enforcement within the Borough.
To provide officers with guidelines to enable
them to make consistent decisions in the field.
1. INTRODUCTION
1.2 The Council is committed to ensuring
businesses, directors, managers and employees comply with their
responsibilities for health and safety at work and there is a range
of powers to enable it to fulfil the duties for which it is
responsible.
1.4 These guidelines direct that
enforcement action, be it verbal warnings, the issue of written
warnings or statutory notices, or prosecution, is primarily based
upon the advice and guidance published by the Health and Safety
Executive (HSE). Enforcement action will not, therefore, constitute
the first response to minor contraventions of legislation.
1.5 All authorised officers when making
enforcement decisions shall abide by these guidelines. Any
departure from these guidelines will be exceptional, capable
of justification and be fully considered by the Senior
Environmental Health Officer before the decision is taken, unless
it is considered that there is significant risk to the public in
delaying the decision.
1.6 All authorised officers should be
fully acquainted with the requirements of these guidelines and any
future amendments made thereof.
2.0 DECISION MAKING
2.1 Whereas elected Members of the Council may determine
general policy with regard to enforcement action following breaches
of the law, Members shall not be involved in detailed consideration
of any individual case, except in special circumstances and for
reasons that must be clearly stated and recorded at the time. The
Council has delegated its authority to make decisions about food
safety enforcement to the Community Group Director who in turn has
delegated these powers to authorised officers in accordance with
their qualifications and experience.
2.2 Prior to the service of any statutory notice, except
in the case of an emergency, the case officer shall fill out the
relevant health & safety at work decision
checklist for service of the notice. These checklists require the
case officer to seek approval for formal action by the Deputy
Environmental Health Manager (or Environmental Health Manager
in their absence).
2.3 The decision whether to prosecute or to issue
a simple caution must involve the Solicitor to the
Council or his representative, following endorsement by the
Environmental Health Manager. The decision will be based on the
relevant legislation, guidance and good practice including the
Codes issued by the Crown Prosecution Service.
3.0 INVESTIGATION
3.1 The Council will use its discretion when deciding on
the level of response to incidents, complaints or cases of ill
health. To maintain a proportionate response, resources will be
devoted to investigations in accordance with the seriousness of the
incident and the circumstances concerned.
3.2 In deciding the level of response to reports of
injury or occupational ill health, authorised officers shall take
into account the following factors:
- The severity and scale of the actual or
potential harm arising from an incident
- The seriousness of any contravention of the
law
- The history of previous incidents
- The enforcement priorities
- The likely outcome of intervention by the Council
- The wider relevance of the incident including public
concern
3.3 The Council will carry out a site investigation of a
reportable work-related death unless there are specific reasons for
not doing so which the investigating officer will state and
record.
3.4 Wherever appropriate, the authorised officer will
liaise with other enforcement agencies and the lead authority for
the business concerned.
4.0 ENFORCEMENT OPTIONS
4.1 Enforcement action may only be initiated by officers
who are authorised to do so.
4.2 The Commercial Team recognises and affirms the
importance of achieving and maintaining consistency in its approach
to making all decisions, which concern enforcement action,
including prosecution. The Council has signed up to and follows the
principles of the
Enforcement Concordat. It will also ensure that
all actions will be consistent with the Human Rights Act
1998.
4.3 It is our policies to ensure a consistent approach
to health and safety at work related enforcement within the Borough
and to inform the public and businesses of the principles by which
enforcement action is taken.
4.4 After taking all the relevant information and
evidence into consideration, authorised officers have the following
options for health and safety enforcement:
Informal action
- To take no action
- To refer the matter to another service or agency
- To take informal action e.g. warning letter
Formal action
- To use statutory notices
- To use simple caution
- To prosecute
5.0 INFORMAL ENFORCEMENT
5.1 Action to secure compliance with legislation includes
the provision of advice and requests for action through the
inspection reports and letters. These methods may be used where
authorised officers believe that they will result in legal
compliance within a reasonable time.
5.2 Informal action may be considered appropriate in the
following circumstances:
- The consequences of non-compliance do not pose a significant
risk to the safety of employees or members of the public
and,
- the offence is not serious enough to warrant formal action;
and
- the past history of the individual or business means that it is
reasonable to believe that informal action will achieve compliance;
and
- there is a good level of confidence in the safety management
arrangements by that individual or business
5.3 Even where some of the above criteria are not fully
met, there may be circumstances in which informal action will be
the most effective enforcement action.
5.4 When informal action is taken to secure compliance
with health and safety legislation, authorised officers shall
ensure that advice and guidance is provided that:
- Contains all the information necessary to understand the work
that is required and why it is necessary; and
- Clearly indicates that any recommendations of good safety
practice are not legal requirements
6.0 FORMAL ENFORCEMENT – STATUTORY NOTICES – IMPROVEMENT
NOTICES
6.1 Officers who are duly authorised by the Council may
issue Improvement Notices. Officers will consider the use of
Improvement Notices where one or more of the following criteria
apply:
- There are contraventions of the legislation;
- There is a lack of confidence in the proprietor, director or
manager of the business to respond to informal action;
- There is a history of non-compliance with the Council’s
informal requests for action;
- Standards are generally poor with little management awareness
of statutory requirements;
- The consequences of non-compliance could be potentially serious
to the health and safety of employees or the public;
- Effective action needs to be taken to remedy conditions that
are serious and deteriorating
6.2 Officers signing Improvement Notices shall have
personally witnessed the contravention and be satisfied that there
is a contravention of one or more of the relevant statutory
provisions. A second authorised officer must countersign the
notices.
6.3 Officers serving Improvement Notices shall endeavour
to obtain the agreement of the proprietor, director or manager of
the business regarding the time limits allowed for compliance with
the notices, having taken due account of the risk to health and
safety. Authorised officers will always discuss the works required
with the proprietor, director or manager and fully consider the
different means of achieving compliance with the law.
6.4 Failure to comply with an Improvement Notice shall
generally result in legal proceedings.
6.5 When serving an Improvement Notice the Council shall
provide information about the right of appeal to an Employment
Tribunal.
7.0 FORMAL ENFORCEMENT - STATUTORY NOTICES - PROHIBITION
NOTICES
7.1 Officers who are duly authorised may issue Prohibition
Notices. Officers will consider the use of Prohibition Notices
where one or more of the following criteria apply:
- Immediate and decisive action is required to protect the health
and safety of individuals from an unacceptable risk of personal
injury;
- Serious risk of personal injury can be demonstrated. This
opinion may be based on evidence from those with special expertise
in the relevant field;
- The authorised officer has had regard to any relevant
information, guidance or codes of practice concerning the
conditions when prohibition may be appropriate
- There is no confidence in the integrity of an offer made by the
proprietor, director or manager to voluntarily close the premises
or particular part of the premises or to cease the use of any
equipment, process or treatment associated with the risk to
personal injury
- A proprietor, director or manager is unwilling to confirm in
writing his or her offer of a voluntary prohibition.
7.2 Authorised officers must have personally witnessed the
matters concerned before signing any Prohibition Notice.
7.3 When serving a Prohibition Notice the Council shall
provide information about the right of appeal to an Employment
Tribunal.
8.0 REVISITS TO PREMISES
8.1 Following the issue of a formal notice, an authorised
officer will revisit the premises to check compliance has been
achieved. Following informal action (see 5.0 above) officers may
advise that a check will be carried out at the next programmed
inspection.
9.0 FORMAL ENFORCEMENT - PROSECUTION
9.1 The decision to prosecute is a significant decision.
Prosecution would be more likely in cases where there has been
wilful disregard of the law, refusal to achieve minimum legal
requirements, a history of non-compliance or where employees or the
public have been placed at serious risk of harm. A decision to
prosecute may therefore be appropriate in any of the following
circumstances:
- Where the alleged offence involves a flagrant breach of health
and safety requirements
- Where the gravity of the offence, taken together with the
seriousness of any actual or potential harm warrants it
- Where there have been repeated breaches or persistent poor
history of compliance
- Where work has been carried out without, or in serious breach,
of an appropriate licence
- Where there has been a failure to comply with a written warning
or an Improvement or Prohibition Notice
- Where authorised officers have been intentionally obstructed in
the lawful course of their duties.
- Where authorised officers have been assaulted in the lawful
pursuit of their duties
- Where death was the result of a breach of legislation
9.2 Where circumstances have been identified which may
warrant prosecution, all available evidence and information will be
considered, to enable a consistent, proportionate and objective
decision to be made.
9.3 Before a prosecution proceeds, the officers
responsible for deciding enforcement action will ensure that they
are satisfied that there is relevant, admissible, substantial and
reliable evidence that an offence has been committed by an
identifiable person or company. There must be a realistic prospect
of conviction.
9.4 In addition the officers concerned must be satisfied
that it is in the public interest to prosecute. In general, the
graver the offence, the less likelihood that the public interest
would be served by action other than prosecution. Reference will be
made to the Code for Crown Prosecutors, issued by the Crown
Prosecution Service.
10.0 PROSECUTION OF INDIVIDUALS
10.1 In addition to the guidance in 9.0 above, officers
responsible for enforcement action may consider whether prosecution
of individuals is warranted and can be secured. The officers making
this decision will consider the management of health and safety by
the company and the role played by individual directors and
managers. Officers may recommend action against individuals where
it can be shown that the offence was committed with their consent
or connivance or to have been attributable to neglect on their
part. Where appropriate the Council may seek disqualification of
directors under the Company Directors Disqualification Act
1986.
11.0 DEATH AT WORK
11.1 Where there has been a breach of the law leading to
a work-related death, the Council may consider whether the
circumstances of the case justify charges of serious criminal
offences outside the area of health and safety law, such as
manslaughter. In these circumstances, officers will liaise with the
Police, Coroner and the Crown Prosecution Service as
appropriate.
12.0 SIMPLE CAUTIONS
12.1 Simple cautions may be considered as an alternative
to prosecution. The purpose of the simple caution is:
- To deal quickly and simply with less serious
offences
- To divert less serious offences away from the Courts
- To reduce the chances of repeat offences
12.2 The following conditions will need to be fulfilled
before a simple caution is administered:
- There must be evidence of the offence sufficient to give a
realistic prospect of conviction
- The suspected offender must admit the offence
- The suspected offender must understand the significance of a
simple caution and give consent to being cautioned.
12.3 If there is insufficient evidence to consider taking
a prosecution then the conditions cannot be satisfied for the use
of a simple caution. There is no obligation for any person to
accept the offer of simple caution. No pressure must be applied to
the person to accept a caution.
12.4 Simple cautions will be used in accordance with the
relevant Home Office Circular.
Where a person declines the offer of a simple caution, the
Council may initiate prosecution.
12.5 The Environmental Health Manager is authorised to
administer simple cautions in respect to health and safety
legislation.
12.6 Where a person declines the offer of a simple
caution, the Council may initiate prosecution.
13.0 ENFORCEMENT AT PREMISES IN WHICH THE COUNCIL HAS AN
INTEREST
13.1 A conflict of interest may arise in premises for
which the Council is normally the enforcing authority for health
and safety legislation but in which it also has an ownership,
management or similar interest. Where these circumstances arise,
the matter will be passed to the Solicitor to the Council to
consider transfer of enforcement responsibility to the Health and
Safety Executive.
14.0 CONDUCT OF INSPECTIONS, INVESTIGATIONS AND
ENFORCEMENT
14.1 When carrying out inspections, investigations and
enforcement, officers must be aware of and have due regard to, the
relevant requirements of the legislation that controls the conduct
of these activities and which may include the following:
- Police and Criminal Evidence Act 1984
- Human Rights Act 1998
- Regulation of Investigatory Powers Act 2000
15.0 TRAINING AND QUALIFICATIONS OF ENFORCEMENT OFFICERS
15.1 No officer will carry out enforcement duties unless
suitably trained and experienced and authorised by Havant Borough
Council.
15.2 Prior to the service of any kind of notice which,
directly or indirectly would cause a business to cease trading, the
matter must be reviewed by the Environmental Health Manager and the
Solicitor to the Council. The local member must also be
consulted at the earliest opportunity after service of a
notice.
.
15.3 Prosecution will only be instigated following review of
the matter by the Environmental Health Manager and the Solicitor to
the Council.
15.4 Training will be provided for all enforcement officers as
required to meet changes in legislation and enforcement
procedures.
16.0 REVIEW OF GUIDELINES
16.1 The implications and effectiveness of these guidelines
will be monitored and reviewed as necessary.
30 November 2009