Outline of the HSE Executive’s most recent Enforcement Policy Statement.
Enforcing authorities are legally required (Legislative and Regulatory Reform Act 2006) to give regard to these principles when allocating resources.
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HSE Enforcement Policy
The HSE enforcement policy believes in firm but fair enforcement of health and safety law informed by the following five principles.
1. Proportionality – Enforcement action should be proportionate to the risks, or to the seriousness of any breach, which includes any actual or potential harm arising from a breach of the law.
The enforcing authorities should take particular account of how far the duty holder has fallen short of what the law requires and the extent of the risks to people arising from the breach.
Duty holders will be expected to follow relevant good practise.
2. Targeting – Enforcing authority efforts should be targeted primarily on those whose activities give rise to the most serious risks or where the hazards are least well controlled. Action should be 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.
3. Consistency – Consistency of approach does not mean uniformity. It means taking a similar approach in similar circumstances to achieve similar ends. In practice consistency is not a simple matter. Decisions on enforcement action are discretionary and require consideration of a range of variables including the degree of risk, the attitude and competence of management, any history of incidents or breaches involving the duty holder, previous enforcement action, and the seriousness of any breach.
All enforcing authorities are required to have arrangements in place to promote consistency in the exercise of discretion.
4. Transparency – Transparency means helping duty holders to understand what is expected of them and what they should expect from the enforcing authorities. The enforcing authorities should make clear to duty holders not only what they have to do but also what they don’t by distinguishing between statutory requirements and advice or guidance about what is desirable but not compulsory.
5. Accountability – Regulators are accountable to the public for their actions. This means that enforcing authorities must have policies and standards against which they can be judged, and an effective and easily accessible mechanism for dealing with comments and handling complaints.
How do the HSE choose its investigations?
In determining those complaints or reported incidents to investigate the HSE will consider…
- The severity and scale of potential or actual harm
- The seriousness of any potential breach of the law
- Knowledge of the duty holder’s past health and safety performance
- The enforcement priorities
- The practicality of achieving results
- The wider relevance of the event, including serious public concern
When do the HSE choose to prosecute companies?
Enforcing authorities will usually prosecute in the public interest, where, one or more of the following apply…
- Death was a result of a breach of the legislation
- The gravity of an alleged offence, taken together with the seriousness of any actual or potential harm, or the general record and approach of the offender warrants it
- There has been reckless disregard of health and safety requirements
- There have been repeated breaches which give rise to significant risk, or persistent and significant poor compliance
- Work has been carried out without or in serious non-compliance with an appropriate licence or safety case
- A duty holder’s standard of managing health and safety is found to be far below what is required by health and safety law and to be giving rise to significant risk
- There has been a failure to comply with an improvement or prohibition notice; or there has been a repetition of a breach that was subject to a simple caution
- False information has been supplied wilfully, or there has been an intent to deceive, in relation to a matter which gives rise to significant risk
- Inspectors have been intentionally obstructed in the lawful course of their duties
When are individuals be prosecuted?
Enforcing authorities will identify and prosecute individuals if they consider that a prosecution is warranted after considering…
- The management chain
- The role played by individual directors and managers
When the investigation reveals the offence was committed with individuals consent or neglect on their part. This will prosecute the individual where it would be appropriate to do so.
There were 43 prosecutions of directors under section 37 of the Health and Safety at Work Act with 35 convictions in 2011. Seven faced charges as a result of a fatal incident; 15 were prosecuted after non-fatal incidents; and 21 resulted from an investigation where no incident of any nature had occurred.
Five of those convicted were given prison sentences, three also received prison sentences for perjury.
Where appropriate, enforcing authorities may also seek disqualification of directors under the Company Directors Disqualification Act 1986.
We offer range of online safety training courses for your staff to help you maintain a safe workplace and keep you away from prosecutions