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

1.1 The Council's approach to enforcement reflects the terms of the Government's Enforcement Concordat to which the Council agreed in February 2001 and complies with the Council Policy for Regulation and Enforcement for all Council regulators confirmed by the Executive on 22 October 2008.

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.

1.3 The primary responsibility for compliance with the Health and Safety at Work etc Act 1974 and the associated legislation lies with businesses and individual employers.

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

Contact Us:

Telephone: (023) 9244 6654

Email: ehcommercial@havant.gov.uk

Visit: Civic Offices, Civic Centre Road, Havant PO9 2AX

Havant Borough Council, Civic Centre Road, Havant, Hampshire PO9 2AX