Service of notices
1. In many cases service of a notice is by hand, immediately on site. Where the notice is served on an employee then you need to ensure that you also let a senior officer of the company know that a notice has been served.
2. Section 46 HSWA details ways by which a notice may be served. There will be other ways to achieve service outside the scope of Section 46 as the section is permissive not prescriptive..
- Section 46(2) allows for service by delivery or leaving at the recipient's proper address;
- Section 46(3) for service on the company secretary or clerk of the body corporate or service on a partnership, by handing to a partner or person controlling or managing the partnership;
- Section 46(4) provides that the address for service on the type of person in b) shall be the registered or principal office of the company or the principal office of the partnership;
- Section 46(4) allows that the proper address of any person shall be his/her last known address. This does not apply to companies or partnerships (section 7 Interpretation Act 1978)
- Section 46(6) allows service on the owner or occupier of premises.
3. If the recipient of a notice accepts that they have received it, this cures any defect in service.
4. Section 7 of the Interpretation Act 1978 states that any document served by post (properly addressed, prepaid and posted) will be deemed to have been served at the time at which the letter would be delivered in the usual way by post, unless proved otherwise.
5. In order to confirm that a notice has been properly served details of the delivery and signature can be obtained through the postal system used.
6. You should serve the first copy of any notice (typed or written); the second must be pre-served in the office records. Where appropriate a copy of the notice should be placed on the public register, (in FOD this is done through the COIN record).
7. You need to inform the recipient of a notice of their right to appeal the same. Details of the method of making an appeal (T420: Making a claim to an Employment Tribunal) and a form to use (ET1) are available from the HM Courts and Tribunal Service[166].
8. Where there is a history of non-compliance, or extensive resources are required to comply with a notice, you should ensure that a copy is brought to the attention of an appropriate senior manager or director. In the event of non-compliance this may assist in a prosecution of that person under section 37 of the HSWA.
9. A copy of the notice should be provided to employees or their representatives in accordance with section 28(8)(b) of HSWA.
10. Service of improvement notices where the corporate body operates on a number of sites has given rise to difficulties in the past. You should therefore ensure that the notice comes to the attention of senior members of the organisation and also to ensure that it is served; in the case of a corporation, at the registered office which may be a firm of solicitors or accountants.
11. If a notice is to be served by email then you should ensure that you:
a) Identify who the notice should be served upon. With a limited company this should be a director of the company or an appropriate senior manager, and;
b) Send the notice by email to them and request that they should personally acknowledge receipt of the same. It is helpful if the intended recipient can also confirm they were able to open the attachment, and;
c) If you do not receive any acknowledgment of receipt then you should serve the notice in one of the ways outlined under s 46 HSWA.
12. Section 46(6) provides that, where service is authorised on the owner or occupier of premises, it may be sent by post to those premises or addressed by name to the person on whom it is to be served and delivered to some responsible person who appears to be resident or employed in the premises. This has been interpreted as limiting service to those premises where the notice alleges a contravention by a person subject to a duty specifically imposed on an occupier. It is not enough that the person is in fact the occupier of those premises and has contravened a relevant statutory provision1.
13. There are general statutory restrictions in place to prevent the reporting and publication of alleged offences or criminal proceedings which could reveal the identity of a person under 18 years of age2. The restrictions apply to press releases and publicly accessible databases (eg the HSE notices database).
14. Where a notice is served on a person under the age of 18, the inspector must advise FOD Legal and Enforcement in writing, so that the name of the young person is omitted from the entry on the notices database.
Footnotes
- Mallon v Norman Hill Plant Hire Ltd Divisional Court 6 March 1981 and HSE v George Tankcocks Garage Ltd Divisional Court 22 January [1993] Crim. L R 605. Back to reference of footnote 1
- Youth Justice and Criminal Evidence Act 1999, s.44,45,52. Back to reference of footnote 2