Drafting notices
Drafting
1. The person who must comply with the notice should be able to easily understand the words on the face of the notice concerning:
- the date for compliance;
- the nature of any offences alleged;
- what, if any, matters are prohibited.
2. The following may be of assistance when drafting a notice:
- You will wish to delete irrelevant wording on the improvement notice form ("LP1") and the prohibition notice form ("LP2"). Then read through the whole notice and check its accuracy before signing. You should be familiar with the notes to the forms.
- You will wish to describe the recipient correctly; to do this it may be necessary to clarify the name with a senior manager or even the company secretary. If you have been misled the notice may still be valid provided it was obvious that it referred to the recipient. However, a more fundamental error such as naming the wrong legal entity will result in a fatally flawed notice.
- It is not necessary to refer to the examples of the duty laid down by section 2(1) of HSWA, which are referred to in section 2(2). However, the particulars giving rise to the breach and how it may be remedied ought to be clearly set out in an attached schedule and/or covering letter, see para 4 below.
3. Directions as to the measures to be taken (section 23(2) HSWA) may refer to an Approved Code of Practice but must still allow the recipient to choose an alternative way of remedying the contravention or matter at issue. The notice should make it clear that the duty holder can adopt alternative measures that achieve the same standard.
4. You should assist recipients of a notice to understand how they are to comply with it.1 This will often be achieved by serving with the notice a schedule, which forms part of the notice and specifies the precise measures that the duty holder needs to take to comply. Where it is not appropriate to include a schedule, you will wish to assist the duty holder by including the remedial measures (together with the particulars giving rise to the breach) in a covering letter. You should make clear that information in the letter has the status of guidance.
5. There may be situations where it is appropriate to attach a schedule and provide further guidance in a covering letter. If so, you must ensure that the contents of the letter are consistent with what is required by the notice and schedule. You must make it clear that the advice in the letter is for guidance only and does not form part of the notice.
6. Where a notice is to be served on a partnership, each partner should, in principle, be served with a notice individually, particularly if the division of responsibilities is unknown. If there are good reasons for excluding some, then discretion may be exercised, based on factors such as the nature of the offence and the division of responsibilities within the partnership. You can include the words 'Mr X, as partner in X&Y Services'.
7. Where a notice is served on users of mobile equipment, it may be necessary to make it clear to the duty holder that the effect of the notice is not restricted to a particular place. For example, a notice in relation to rides with travelling fairs, or contractors in the construction industry, might refer to the operation of equipment 'at any site in Great Britain' to describe the location of the activity. You may then also need to advise inspectors in other areas where the equipment may be taken. Notices can also prohibit the supply of a substance or particular machinery. In such cases you should consult with the sector group or appropriate discipline specialist.
8. If the location(s) of an activity cannot be exactly stated, the word 'at' on the notice form can be deleted. Indeed, in some cases it may be misleading to specify a particular location and may allow the dutyholder to argue that you do not have sufficient information about activities at the stated location(s) to justify the notice. For example, if you consider that a dutyholder is breaching a relevant statutory provision but you are unable to ascertain how many of the company's operating sites are affected, it will be more appropriate to omit reference to a particular location by deleting the word 'at' than to state on the notice that the dutyholder is breaching the legal provision at all of its locations.
9. If the notice will affect the means of escape in case of fire, Section 23(4) requires consultation with the enforcing authority under the Regulatory Reform (Fire Safety) Order 2005 (when that Order applies to the premises) and in any other case with the Fire and Rescue Authority.
Contraventions
10. The subject matter of the notice can only cover one requirement; however, if this involves contravention of more than one legal provision, eg a contravention of section 2(1) HSWA and a contravention of a relevant provision of a Regulation, you should include reference to all the contraventions in the notice.
11. A notice may cover an identical requirement applying to a number of similar machines, but must not cover unrelated matters. However, where there are a number of breaches, and each one is to be addressed in a different timescale, more than one notice should be served. For example, a notice should clearly specify which machines it relates to, by serial or model number, and it may, in certain circumstances, be good practice to issue one notice per machine in order to ensure that the notice is clear in its application.
12. When you are deciding whether there is a contravention of a health and safety provision, you will normally have considered whether it was reasonably practicable for the duty holder to do more. If it is difficult to ascertain what reasonably practicable steps the duty holder has failed to take, but the known facts require matters to be improved, the existence of a risk should be sufficient to uphold the notice, where the offence is qualified by 'reasonable practicability'.
13. Reasonable practicability is referred to in section 40 HSWA. Appeals against notices are civil proceedings but section 40 only refers to criminal cases. This is because, in civil proceedings, the onus of proof was already on the duty holder before HSWA was drafted.2 The burden of proof is therefore on the duty holder when appealing a notice and it is possible for you to rely on section 40 when issuing a notice 3.
14. You may reasonably clarify what is expected to comply with a notice, but employers may be expected to seek advice elsewhere.
Period of notice
15. Before issuing an improvement or deferred prohibition notice, you will wish to discuss its contents, including the date to be given for compliance, with the dutyholder with a view to resolving, if possible, any points of difficulty. You will also wish to explain the effect of the notice. Factors to be taken into consideration in deciding upon an appropriate period of time for the notice may include:
- the time required to obtain new plant or equipment;
- prior knowledge of the breach;
- the period should be as short as possible, realistic, and, in the case of an improvement notice, not less than 21 days.
16. You will wish to make it clear that the period may be extended if the need arises. Although not a legal requirement, a written request would normally be expected. The extension will normally be given in writing on the relevant form ('LP4').
17. Section 23(5) provides that the period for compliance for an improvement notice or a deferred prohibition notice (ie a prohibition notice which is not to take immediate effect) may be extended, or further extended, at any time when an appeal is not pending ie whether or not the time for compliance has expired. However, dutyholders who fail to comply with a notice within the compliance period and do not seek an extension within that period should ordinarily be considered for prosecution for failing to comply with the notice. Inspectors should not generally agree extensions after the period for compliance has passed in the absence of compelling reasons.
18. You will probably want to check compliance with the notice(s) by visiting the premises. This is best done before the notice expires to allow for an extension to be issued if appropriate. This also allows you to plan for a re-visit with a colleague immediately after the expiry so that you can gather evidence of non-compliance. Any delay in visiting after the expiry may allow the firm to allege that matters were satisfactory but the position has since deteriorated.
Environment and Safety Information Act 1988 (ESIA)
19. Prohibition and Improvement Notices are automatically uploaded to HSE's Public Register of Enforcement Notices and by doing so, HSE fulfils its legal obligation to maintain and provide access to a register of relevant notices under ESIA. However Inspectors are still required to indicate on prohibition and improvement Notices whether 'This is / is not a relevant notice for the Environment and Safety Information Act 1988' by marking the notice accordingly.
20. Relevant notices for ESIA include improvement and prohibition notices other than those which impose requirements or prohibitions solely for the protection of persons at work 4 ie notices where there is risk to persons not at work, such as members of the public. This includes risks from a duty holder's undertaking which could affect those visiting a duty holder's premises (inside the boundary), but also members of the public outside the site boundary ie traffic management issues, fire, explosions, collapse of a structure (whether temporary or permanent) etc.
21. In fact "persons at work" has the same meaning as it does in the Health and Safety at Work etc Act.Withdrawing a notice
22. Section 23(5) also provides that an improvement notice or deferred prohibition notice may be withdrawn at any time before the end of the period specified for compliance. There is a pro-forma for withdrawing a notice: ("LP5").
23. Withdrawal may be appropriate where, for example, a mistake was made on the notice, the situation has changed after issue or where further information came to light which made the original notice inappropriate. If a new notice is to be issued the original should be properly withdrawn first.
24. An improvement or deferred prohibition notice cannot be withdrawn after the period for compliance has expired, so if an inspector wishes to withdraw an expired notice, the period for compliance must first be extended. Extensions outside of the period for compliance should be rare. An immediate prohibition notice can never be withdrawn.
25. You can withdraw a notice that is under appeal (unlike extending the time period), but should you do so the dutyholder may ask the tribunal to award costs against HSE.
[Section 31 (Law enforcement) exemption Freedom of Information Act 2000]
27. The term 'without prejudice' is short for 'without prejudice as to liability save as to costs'. It is used when parties involved in civil litigation, such as a notice appeal, wish to explore a settlement. The phrase denotes that one of the parties is interested in negotiating some form of settlement without accepting liability. Costs are mentioned because, whilst correspondence marked 'without prejudice' cannot be used against either of the parties to determine liabilities arising from issue of the notice, it can be considered when it comes to awarding costs of bringing the appeal.
Footnotes
- See the Enforcement Policy Statement (PDF) [166]: Principles of enforcement – Transparency (paras 24 – 26). Back to reference of footnote 1
- Nimmo v Alexander Cowan and Sons Ltd [1968] A. C. 107 HL. Back to reference of footnote 2
- Readmans Ltd and another v Leeds City Council. Crown Office March 10 1992 "it would be inelegant, if not absurd, if the burden of proof were to be different in an appeal against a Prohibition Notice from that which would apply in a Criminal Prosecution". Back to reference of footnote 3
- Environment and Safety Information Act 1988: s 2(3): The notices relevant for the purposes of this Act are those served under any of the provisions specified in the fourth column of the Schedule to this Act, other than notices which impose requirements or prohibitions solely for the protection of persons at work. Back to reference of footnote 4