| 1 |
The aims of
the Health and Safety Commission are to protect
the health, safety and welfare of employees and
to safeguard others, principally the public, who
may be exposed to risks from work activity. This
statement sets out the general principles and
approach which the Commission expects enforcing
authorities to follow. It is written for enforcing
authorities, who need to know the Commission's
policy, and for anyone who has an interest in
the enforcement of the Health and Safety at Work
etc. Act 1974 and relevant statutory provisions. |
| 2 |
Enforcing
authorities must seek to secure compliance with
the law. Most of their dealings with those on
whom the law places duties (employers, the self
employed, employees and others) are informal -
inspectors offer information, advice and support,
both face to face and in writing. They may also
use formal enforcement mechanisms, as set out
in health and safety law, including improvement
notices where a contravention needs to be remedied;
prohibition notices where there is a risk of serious
personal injury; withdrawal of approvals; variations
of licences or conditions, or of exemptions; or
ultimately prosecution. This statement applies
to all dealings, formal or informal, between inspectors
and duty holders - all contribute to securing
compliance. |
| 3 |
The Commission's
view of enforcement derives from the philosophy
set out in Lord Robens' report Safety and Health
at Work (Cmnd 5034 1972). Lord Robens considered
that there should be a quick and effective response
to flagrant breaches of the law and a discriminating
and efficient approach to other breaches. |
| 4 |
Much of modern
health and safety law is goal setting - setting
out what must be achieved, but not how it must
be done. Guidance on how to achieve the goals
is often set out in Codes and there is also a
wide variety of advisory material describing good
practice. Neither Codes nor guidance material
are in terms which necessarily fit every case.
In considering whether good practice has been
adopted, Inspectors will need to take relevant
Codes and guidance into account, using sensible
judgement about the extent of the risks and the
effort that has been applied to counter them.
More is said about these matters below. |
| 5 |
Sometimes
the law is prescriptive - spelling out in detail
what must be done. For example, all mines must
have more than one exit; contacts with live electrical
wires must be avoided. Prescriptive law limits
the discretion of the duty holder and the enforcer.
|
| Principles
of enforcement |
| 6 |
The enforcement
of health and safety law should be informed by
the principles of proportionality in applying
the law and securing compliance; consistency of
approach, targeting of enforcement action and
transparency about how the regulator operates
and what those regulated may expect. |
| Proportionality
|
| 7 |
Proportionality
means relating enforcement action to the risks.
Those whom the law protects and those on whom
it places duties (duty holders) expect that action
taken by enforcing authorities to achieve compliance
should be proportionate to any risks to health
and safety and to the seriousness of any breach.
|
| 8 |
Some health
and safety duties are specific and mandatory -
others require action so far as practicable. In
general, the concept of proportionality is built
into the regulatory system through the principle
of 'So Far As Is Reasonably Practicable'. Deciding
what is reasonably practicable to control risks
involves the exercise of judgement by duty holders
and discretion by enforcers. When duty holders
and enforcer cannot reach agreement, final determinations
on what is reasonably practicable in particular
circumstances are made by the courts. |
| 9 |
When the law
requires that risks should be controlled so far
as is reasonably practicable, enforcing authorities
considering protective measures taken by duty
holders should always take account of cost as
well as the degree of risk. The authorities may
legitimately expect that relevant good practice
will be followed. Where relevant good practice
in particular cases is not clearly established,
health and safety law effectively requires duty
holders to assess the significance of the risks
(both their extent and likelihood) to determine
what action needs to be taken. Some irreducible
risks may be so serious that they cannot be permitted
irrespective of the economic consequences. At
the other extreme, some risks may be so trivial
that it is not worth spending more to reduce them.
In general, risk-reducing measures would be weighed
against the associated costs. If there is a significant
risk, the duty holder must take measures unless
the cost of taking particular actions is clearly
excessive compared with the benefit of the risk
reduction. |
| Consistency
|
| 10 |
Consistency
of approach does not mean uniformity. It means
taking a similar approach in similar circumstances
to achieve similar ends. |
| 11 |
Duty holders
managing similar risks expect consistency from
enforcing authorities in the advice tendered;
the use of enforcement notices, approvals etc;
decisions on whether to prosecute; and in the
response to accidents. |
| 12 |
The Commission
recognises that in practice consistency is not
a simple matter. HSE Inspectors and local authority
enforcing officers are faced with many variables:
the level of hazard, the attitude and competence
of management, the accident history may vary between
companies which may otherwise appear similar.
The decision on enforcement action is a matter
of judgement and the enforcer must exercise discretion.
All enforcing authorities should have arrangements
in place to promote consistency in the exercise
of discretion, including effective arrangements
for liaison with other enforcing authorities.
|
| Transparency
|
| 13 |
Transparency
means helping duty holders to understand what
is expected of them and what they should expect
from the enforcing authorities. It also means
making clear to duty holders not only what they
have to do but, where this is relevant, what they
don't. That means distinguishing between statutory
requirements and advice or guidance about what
is desirable but not compulsory. |
| 14 |
This statement
sets out the general policy framework within which
enforcing authorities should operate. Duty holders
need to know what to expect when an inspector
calls and what rights of complaint are open to
them. HSE's approach is set out in two publications,
HSE Working with Employers, and HSE and You, produced
in response to the Citizen's Charter, and reflecting
the principles of the Government's Code for enforcement
agencies. The publications describe a complaints
procedure in the case of administrative decisions,
and appeals to an industrial tribunal in the case
of statutory notices. The Commission has asked
local authorities to adopt the principles of the
Government's Code. |
| Targeting
|
| 15 |
Targeting
means making sure that inspection is targeted
primarily on those whose activities give rise
to the most serious risks or where the hazards
are least well controlled; and that action is
focused on the duty holders who are responsible
for the risk and who are best placed to control
it - whether employers, manufacturers, suppliers,
or others. |
| 16 |
The Commission
expects that enforcing authorities will have systems
for prioritising visits according to the risks
posed by a duty holder's operations; and that
they will take account of hazards and the nature
and extent of risks. Management competence is
important, because a relatively low hazard site
poorly managed can entail greater risk to its
workforce or the public than a higher hazard site
where risk-control measures are in place. There
are, however, high hazard sites (eg nuclear installations,
offshore installations, highly hazardous chemical
plant or processes) which will receive regular
visits so that enforcing authorities can be sure
that remote risks continue to be effectively managed.
|
| 17 |
When formal
enforcement action is necessary, the person responsible
for creating a risk should be held to account
for it. The duty holder may be the owner of the
premises, or the supplier of the equipment, or
the designer or client of the project, rather
than the employer of the workers exposed to the
risk. Where several duty holders share a responsibility,
enforcing authorities should take action against
those who can be regarded as primarily in breach.
|
| Prosecution
|
| 18 |
Enforcing
authorities must use discretion in deciding whether
to initiate a prosecution. Other approaches to
enforcement can often promote health and safety
more effectively but, where the circumstances
warrant it, prosecution without prior warning
and recourse to alternative sanctions may be appropriate.
|
| 19 |
The Commission expects
that enforcing authorities will consider prosecution
when: |
| |
- it is appropriate in
the circumstances as a way to draw general
attention to the need for compliance with
the law and the maintenance of standards required
by law, especially where there would be a
normal expectation that a prosecution would
be taken or where through the conviction of
offenders, others may be deterred from similar
failures to comply with the law;
|
| |
- or there is judged
to have been potential for considerable harm
arising from breach;
|
| |
- or the gravity of the
offence, taken together with the general record
and approach of the offender warrants it,
eg apparent reckless disregard for standards,
repeated breaches, persistent poor standards;
|
| |
The decision
to prosecute must also take account of the criteria
set down in the Code for Crown Prosecutors,
and in Scotland by the Procurator Fiscal as
published in the Crown Office and Procurator
Fiscal Service's Annual Report 1992/93 e.g.
evidence and public interest tests.
|
| Prosecution
of individuals |
| 20 |
Subject to
the above, enforcing authorities should identify
and prosecute or recommend prosecution of individuals,
including company directors and managers, if they
consider that a conviction is warranted and can
be secured. |
| Death
at work |
| 21 |
Where there
has been a breach of the law leading to a work-related
death, enforcing authorities need to consider
whether the circumstances of the case might justify
a charge of manslaughter (culpable homicide in
Scotland). Enforcing authorities in England and
Wales should liaise with the Police, Coroners
and the CPS and if they find evidence suggesting
manslaughter, pass it on to the Police or where
appropriate the CPS. If the Police or the CPS
decide not to pursue a manslaughter case, the
enforcing authorities should prosecute or recommend
prosecution of a health and safety case if that
is appropriate. In Scotland responsibility for
investigating sudden or suspicious deaths rests
with the Procurator Fiscal. |
| Encouraging
action by the courts |
| 22 |
Health and safety law gives
the courts considerable scope to punish offenders
and to deter others. Unlimited fines and in some
cases imprisonment may be imposed by higher courts.
The Commission will continue to raise the courts'
awareness of the gravity of health and safety
offences and encourage them to make full use of
their powers. A list of the sanctions presently
available to the courts is attached to this statement.
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