Introduction
In the UK, the health and safety at work act of 1974 lays down strict requirements. Employees and employers alike must conform to the act or face the legal consequences.
Criminal law
Made by parliament, criminal law is statutory law. It’s purpose is to punish. Statutory law is an offence against the state and therefore the prosecution’s aim is to establish guilt. The prosecution must prove that the defendant is guilty beyond all reasonable doubt.
Corporate manslaughter
In 2007 the Corporate Manslaughter and the Corporate Homicide Act was given Royal assent. Coming into force on the 6th of April 2008. It is called corporate manslaughter in England, Wales & Northern Ireland. In Scotland it is called corporate homicide.
Further information from the Health and Safety Executive can be found here.
If a health and safety failure results in a fatality then the organisation can be charged with corporate manslaughter. The resulting sentence could include an unlimited fine. The offence is also made public.
Inspectors
Only officers appointed by the enforcing authorities or the Director of Public Prosecutions may prosecute. This may also include someone acting on their behalf. Such appointed officers are called inspectors.
Inspectors may not always be qualified to prosecute. Their expertise maybe better suited to the incident involved in the investigation. Where cases are brought before a Magistrates court, an inspector may prosecute without being legally qualified to do so. However, if a case is heard before a Crown court, an inspector would not be permitted to prosecute.
The Director of Public Prosecutions however, may, in any court, consent to anyone being permitted to prosecute.
The list of offences that an inspector may prosecute against is vast. The ultimate question to be answered is:
“Is the article, person or safe system of work, without risk to health?”
Section 19 of the UK health and safety at work act, states that every appointment of a person as an inspector shall be made in writing. Including the specific powers granted to him / her, and the relevant statutory provisions that they are able to exercise.
Inspectors are only able to exercise the powers specified in writing and only within the field of responsibility authority appointed to him / her. The powers may be varied but only by the enforcing authority.
When acting as an inspector the person must produce, on demand, the evidence of their appointment.
General powers of inspectors
Sections 19 through to 28 of the UK health and safety at work act outline the legal powers of inspectors.
Fundamental roles of an inspector
- Investigate accidents and dangerous occurrences
- Gather and collate statistics relating to accidents and dangerous occurrences
- Conduct legal proceedings before Magistrates Courts in England & Wales
- Enforce legislation relating to health and safety
- Monitor safety performance and accident potential in places of employment
- Monitor standards of new machinery, processes and substances and liaise with manufacturers
- To provide training and general advice to employers and employees on the practical aspects of health, safety and welfare. This includes help interpreting the legislation which they enforce.
Fundamental roles of an inspector
Each inspector will carry a warrant on their person, which entitles them to use these powers:
- The right of entry (without having to resort to a Magistrate’s court).
- An inspector may enter any premises which he considers to be a place of employment. At any reasonable time of day or night.
- An inspector may take police officer with them if they have reasonable cause to think that there would be any serious obstruction to prevent them from carrying out their duties.
- An inspector can also take with him any other person who has been authorised by the Health and Safety Executive.
- Equipment and materials required to carry out tests, etc. may also be taken into places of employment.
- An inspector may require premise, part of premises or anything in the premises to be left undisturbed until an examination or investigation is completed.
- An inspector has the right to take measurements, photographs and make records as he / she thinks fit.
- Obtain samples of articles and substances, either in the premises or in the atmosphere, or in the vicinity of the premises.
- An inspector may order equipment, plant, substances, etc. to be dismantled or destroyed if they a cause of immediate danger.
- An inspector may take into the possession of the Health and Safety Executive articles and substances.
- An inspector has the right to require the production of, and take copies of, books and documents which are relevant to his / her work.
- An inspector has the right to examine any person, either alone or with a second person, as he / she thinks fit. And require a written statement of fact.
- An inspector may conduct legal proceedings before a Court of Summary Jurisdiction (Magistrates court) in England and Wales.
- An inspector may serve improvement and prohibition notices.
Enforcement notices
Within the present judicial system . the time between a criminal offence and the it’s prosecution before an appropriate court, can be quite lengthy.
It was recognised that there is a need to remedy breach in health and safety as quickly as possible. And so, the enforcement notice procedure was introduced to allow inspector to enforce immediate action.
Section 21 - Improvement notices
An inspector may issue an improvement notice if:
- They are of the opinion that a person is contravening one or more statutory provisions.
- Or, it is likely that a person will continue to contravene one or more statutory provisions.
An improvement notice must state the inspectors reasoning and specify a time period for remedying the contravention. Although, the specified time period cannot be less than the appeal period. Currently set at 21 days.
Beyond the minimum 21 days, the time period is left to the inspectors discretion. It should be governed by the seriousness of the matter involved. The length of time and ease with which a remedy can be implemented can also be taken in account.
An improvement notice may also include specific actions that the inspector considers necessary to put matters right. These actions are likely to include references to approved codes of practice or British standards.
Improvement notices are served to the person responsible for the breach of law. This is usually the employers, unless the law being breached does not impose obligations on the employer.
Section 22 - Prohibition notices
A more severe form of notice than an improvement notice. A prohibition notice is issued if:
- An inspector is of the opinion that the activities involve, or may involve, risk of serious personal injury.
Prohibition notices must state the matters which give rise to the risk. Most importantly, it states that the activities to which the prohibition notice relates, shall not be carried out.
Until the matters included in the prohibition have been remedied, the activities can not longer continue.
If an inspector believes that there is an imminent danger, a prohibition notices can be forced to take immediate effect. In other cases it shall have effect at the end of a specified notice period.
Unlike an improvement notice, a prohibition notice is served directly to the individual carrying on the activities that are in breach of law. Whether or not they are responsible for the legal requirements.
For example, a person operating an unguarded machine would have the prohibition notice served on them. However, in such circumstances the inspector would serve a copy of the notice their employer.
Similarly to improvement notices, prohibition notices are normally served personally and immediately.
Improvement notice vs prohibition notice
- Prohibition notices are served in the anticipation of danger.
- Improvement notices are served in contravention to health and safety law.
- Prohibition notices can be served even if there is no contravention to health and safety law.
Section 23 - Choice or Deferral
Improvement notices and prohibition notices often provide choice regarding methods to remedy the contravention. This may include references to approved codes of practice or advice from authorities.
Where notices do not take immediate effect, an inspector can withdraw a notice before the end of the specified time period.
Within the specified time period, an inspector can also extend the time period.
Time extensions and withdrawals are only applicable where there are no pending appeals against the notice
Section 24 - Appeals
Employment tribunals hear notice appeals within 21 of the notice being served. Time limits can be extended by the tribunal if it is satisfied that is is not reasonably practicable to appeal within the time period.
Appeals must be made in writing and addressed to the appropriate secretary of the tribunals England and Wales or Scotland.
The operation of improvement notices are suspended during an appeal period. This lasts until the appeal is either heard or withdrawn by the tribunal.
Prohibition notices can only be suspended via approval of a submitted application and specific direction by the tribunal.
It is an offence to contravene the terms or requirements outlined in either an improvement notice or a prohibition notice.