Types of notice
- Improvement notices
- Prohibition notices
- Selection of the appropriate notice
- Crown enforcement notices
Improvement notices
1. Section 21 HSWA1 states that, where an inspector is of the opinion that a person is contravening one or more of the relevant statutory provisions, or has contravened one or more of those provisions in circumstances that make it likely that the contravention will continue or be repeated, s/he may serve an improvement notice. The notice should:
- state that s/he is of that opinion;
- specify the provision(s) in question;
- give particulars of the reasons why s/he is of that opinion;
- require the person to remedy the contravention or the matters occasioning it; and
- specify the period for compliance, which should be not less than 21 days from the date of service of the notice, being the period in which the recipient of the notice may lodge an appeal with the employment tribunal.
2. Where any of the relevant statutory provisions applies to a building, an improvement notice should not direct measures to be taken which are more onerous than any current building regulation, unless the relevant statutory provision imposes specific requirements which are more onerous2.
3. An improvement notice cannot be used to require a duty holder to do something which has no attainable end within the compliance period. For example, a notice might require a duty holder to provide, by a given date, a guard on a dangerous part of machinery but it cannot require the person to maintain the guard in good condition as this would be an ongoing requirement. A notice can, however, properly require that, by the given date, a suitable system is put into place to ensure that the guard is maintained in an efficient state, efficient working order and good repair.
4. When an improvement notice is served, there should be a discussion with the duty holder about the notice and how s/he can comply with it. An effort should be made to resolve any points of difference3. For guidance on selecting an appropriate period for compliance, extensions of time and withdrawing improvement notices, see Drafting notices.
5. The notice should not direct a duty holder to go beyond what is legally required of them. You may put any such advice in a covering letter, making it clear that it is guidance and does not form part of the notice.
6. If an appeal is brought against service of an improvement notice, the operation of the notice is suspended until the appeal is either heard or withdrawn4. Further guidance on the effect of an appeal can be found in the section Notice of appeal[166].
Prohibition notices
7. Provisions relating to the service of prohibition notices are set out in sections 22 and 23 HSWA. Prohibition notices may be served in relation to activities which are being, or are likely to be, carried on, and to which any of the relevant statutory provisions apply (or will apply).
8. Section 22 allows an inspector to serve a prohibition notice on a person if s/he is of the opinion that an activity carried on (or likely to be carried on) by or under the control of that person involves (or will involve) a risk of serious personal injury5.
9. If the activity in question has been carried on but has been temporarily suspended as a result of an accident, the activity may still be continuing for the purposes of section 22 and the notice may be framed in the present tense6. If, however, the activity has not previously been carried on, the inspector must be of the opinion that it is likely to be carried on in a way which will involve a risk of serious personal injury.
10. A prohibition notice should:
- state that the inspector is of the above opinion;
- specify the matters which in his/her opinion give, or will give, rise to the risk; and
- direct that the activity should not be carried on by or under the control of the person on whom the notice is served unless the matters giving rise to the inspector's opinion have been remedied.
11. A lack of commonly expected precautions (eg properly qualified persons) may justify an opinion that there is a risk of serious personal injury where other factors, which could have reduced the level of risk, are also absent.
12. Where an inspector is of the opinion that the activity involves a contravention of any of the relevant statutory provisions, the prohibition notice should:
- state that s/he is of that opinion;
- specify the provision(s) being contravened; and
- give details of the reason(s) why s/he is of that opinion.
13. However, provided that the inspector reasonably believes that there is a risk of serious personal injury, a contravention of a statutory provision is not necessary for a prohibition notice to be valid.
14. The requirement that an activity should not be carried on until specified matters have been remedied may either take effect immediately or be deferred until the end of a specified period.
15. It would not be appropriate to defer the effect of the notice in circumstances where immediate action is required to control the risk of serious personal injury, including a risk of long-term damage to health where the effect is cumulative and any exposure will contribute to the ultimate damage.
16. A deferred prohibition notice would be appropriate where stopping the activity immediately would introduce additional risks. This would be the case, for example, where it would be dangerous to interrupt a particular process in mid–cycle (see 'Selection of the appropriate notice' below). Guidance on selecting an appropriate period for compliance, extensions of time and withdrawing deferred prohibition notices is given in the section Drafting notices[167].
17. A prohibition notice may be served on any person in control of a process or a piece of plant subject to the relevant statutory provisions. This includes an employee who may not be aware that the activity is unsafe and is acting in accordance with his/her employer's instructions. In such circumstances, the employer should be contacted to advise them of the situation and the proposed notice. The inspector may consider serving a notice on both employer and employee.
18. A prohibition notice, whether immediate or deferred, is not automatically suspended by an appeal. The appellant may, however, apply to the employment tribunal for a direction suspending operation of the notice until the appeal is heard7. For further guidance, see the section Notice of appeal[168].
Selection of the appropriate notice
19. The Enforcement Management Model (PDF) [169] assists inspectors in using their discretion to make enforcement decisions. It summarises the factors inspectors will consider in determining an appropriate response to risks and apparent breaches of health and safety legislation; these include the degree of risk and the existence of relevant benchmark standards. This approach will also help inspectors to resist any appeal against a notice on the grounds that the duty holder could not foresee the risk.
20. In some cases, both types of notice may be served to deal with the same set of circumstances. Where there is a risk of serious personal injury, it may well be appropriate to serve a prohibition notice to stop the activity in question, for example use of a defective scaffold or an unguarded power press. In order to secure sustained compliance with the law, the inspector may address any wider failings that led to the situation, such as poor maintenance procedures, by way of an improvement notice.
21. When deciding whether a prohibition notice should take effect immediately or be deferred, the relative risks of each course of action should be considered. In a continuous process, the risks may be minimized by serving a deferred notice; this will give the person in control a suitable period to shut down the process safely. In each case, the inspector must be of the opinion that the activity involves a risk of serious personal injury. The effect of the notice should not be delayed unless the risks of stopping the activity immediately are greater than the risks of deferring the prohibition until later.
22. Transient situations, such as some construction work, may require a different approach from that taken in a factory; service of an improvement notice may be justified but the timescale of the work, or the effect of an appeal (see above), may render such a notice ineffective. However, in order for a prohibition notice to be served, the inspector must be of the opinion that there is a risk of serious personal injury; if this is not the case, a prohibition notice may not be served. In such a situation, the inspector is entitled to remind the duty holder that, even though a notice is not being served, the duty holder should take action to deal with the contravention and that any continuing non-compliance with legal obligations will be cited as an aggravating feature at sentencing in any future prosecution.
Crown enforcement notices
23. Crown bodies are exempt from the provisions of HSWA relating to improvement and prohibition notices, prosecution and penalties8. The remaining provisions of the Act do, however, apply to Crown bodies and they should be expected to give the same priority to health and safety as duty holders in the private sector (see SIM 7/2001/34[170]). Operational guidance has been produced on inspecting certain Crown bodies, such as the Ministry of Defence .
24. Crown notices are the non-statutory equivalent of improvement and prohibition notices. References to sections 21 to 24 of HSWA are deleted from the forms (LP51 and LP52) as Crown notices are not issued under those provisions. Crown notices are not legally binding and the Crown cannot be prosecuted for a breach of these notices (section 48(1) HSWA).
25. Crown notices should be served on the Crown and not individuals. However, inspectors should keep employees and safety or other employee representatives informed of matters affecting health and safety, including any enforcement action proposed or taken (section 28(8) HSWA).
26. When considering whether to serve a Crown enforcement notice, inspectors should take the same approach, and follow the same procedures, as for statutory improvement and prohibition notices. A copy of the notice should be given to the safety representative or other appropriate employee representative.
27. Crown employers may request an extension of time in which to comply with the notice. They may also request the withdrawal of a Crown improvement notice, in which case the request should be dealt with in the same way as for a comparable non-Crown notice.
28. The date for compliance on a Crown improvement notice should not be less than 21 days from the date of service, in order to keep the procedures as similar to those for statutory notices as possible. The period of time allowed to undertake remedial work should be no more generous than for a private employer; notices should reflect the same sense of urgency.
29. There is no process by which the Crown can appeal against Crown notices to an employment tribunal. If a Crown body considers that it has grounds to challenge a Crown notice, it may appeal to the inspector's line manager and, finally, to HSE's Chief Executive.
30. Information about Crown notices is published in the Public Register of Enforcement Notices[171]. HSE will normally provide information from the front page of the notice in question, but will consider any written representations from the Crown that such disclosure would harm national security or that the information is commercially sensitive.
Footnotes
- Supplementary provisions on improvement (and prohibition) notices are set out in section 23. Back to reference of footnote 1
- Section 23(3) HSWA. Back to reference of footnote 2
- See HSC's Enforcement Policy Statement (PDF) [172]: Principles of enforcement – Transparency (paras 24 to 26). Back to reference of footnote 3
- Section 24(3)(a) HSWA. Back to reference of footnote 4
- The requirement that the risk of serious personal injury must be "imminent", previously contained in section 22(4), has been repealed. Back to reference of footnote 5
- See Railtrack plc v Smallwood [2001] ICR 714: Following a major rail accident, train services along the affected route were suspended. The court held that the inspector was entitled to serve a prohibition notice on the grounds that activities "being carried on" involved a risk of serious personal injury, even though resumption of the service was unlikely. Back to reference of footnote 6
- Section 24(3)(b) HSWA. Back to reference of footnote 7
- Section 48 HSWA: sections 21 to 25 and 33 to 42 do not apply to the Crown. Back to reference of footnote 8