Appendix - Enforcement guidance framework

OC 130/4a

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Layout

The required ROG/PGG format must be followed. Each section of the template gives guidance on what should be included.

In particular, the "Introduction" section should simply describe the risk or range of risks to which the guidance applies. The nature of hazard should be clearly stated, for example, a machine or item of work equipment, a process, or a work activity. These should be described so that a reader, who is unfamiliar with them, can understand both them and the relevant terminology. Authors should explain how enforcement action is linked to inspection/investigation strategies (ie prioritising hazards).

The amount of information allocated to the "Action" section will depend on the purpose of the operational guidance (OG). If dealing with extensive advice or a wide range of issues, it may be appropriate to direct the reader to follow guidance set out in one or more appendices. Taking this option allows flexibility in structuring the information. It also allows the use of tables which can be effective in dealing with a number of issues or situations.

Relating the subject matter to the EMM

Risk of serious injury

Authors should follow the EMM process, where appropriate. In particular, to remind the reader that the EMM does not start with risk gap analysis, rather, with addressing the risk of serious injury. Authors are advised to refer readers to the overview in Figure 1 of the EMM to reinforce the point. It may then be helpful to describe to the reader situations that could result in the risk of serious injury in the context of the subject of the OG. In simple terms this may be descriptions of situations that generally attract a prohibition notice (S22 HSWA) or a direction to make an article safe (S25 HSWA).

Referring again to Fig 1 readers should be reminded that having concluded action under Ss 22 or 25 HSWA, they should reconsider the overall situation and apply the EMM to any remaining enforcement issues.

Gap analysis

Actual risk

Actual risk, ie the situation encountered by the inspector, is informed by an understanding of generic risks in the sector/activity, and judged by the inspector concerned. Enforcement guidance should provide sufficient information to enable inspectors to identify the level of actual risk.

Accordingly, inspectors must understand the hazard, the likelihood of undesired effects arising from the hazard and the extent of possible harm.  Authors should therefore explain, in the context of the subject of the OG, how to interpret the EMM descriptors; "likelihood" and "consequence".  For example, for the matter under consideration, what constitutes a serious personal injury and in what circumstances would it be probable that such an injury will occur.

When considering hazards to health, authors should refer to OG Enforcement Management Model (EMM): Application to Health Risks . This guidance directs inspectors to base enforcement considerations on the most credible health outcome (MCHO). Guidance should be provided to help inspectors identify MCHOs.

Successful OG has employed situational examples to this effect. For example;

"Persons working immediately alongside an unfenced excavation 2 metres deep constitutes a probable likelihood of serious personal injury".

An example relating to health risk could be;

"The MCHOs from inhalation of organic solvents from paints, cleaning solvents or during printing, are nausea, headache, or systemic effects. These are "significant" consequences.

Prolonged exposures over the relevant WEL result in a "probable" likelihood of these (significant) consequences.

Where exposures are above the WEL but of short duration or, below the WEL and extended, the likelihood of significant consequences is "possible".

This may appear cumbersome, but providing such information in tabular form can be effective. See operational guidance Enforcement Management Model (EMM): Application to Hazardous substances for an example.

Some scenarios which might be considered in enforcement guidance can be complex and may not lend themselves to a tabular format. However, the guidance should aim to be as straightforward as possible. Where there is the potential for multiple defects, the guidance should show how they can interact and impact on the actual risk.

Overall, authors should seek to provide an illustration of a range of actual risks. However, scenarios must be tightly prescribed, in order to be effective and authors using situational examples need to take care to ensure each example is risk based. For example "An unfenced excavation, 2 metres deep" is not a valid example, whereas  "Persons working immediately alongside an unfenced excavation 2 metres deep" is.

Authors can enhance inspectors' understanding of actual risk by providing information on;

• accident/injury data
• the probability of incidents/injuries/ill health, and
• the consequences
  • when safeguards have been in place, and
  • when they are absent or are deficient

Safeguards should be clearly explained, and may include information about workplace precautions, risk control systems and associated management arrangements.

Where this information is already available in sufficient detail, authors should make clear reference to the appropriate guidance. However, authors may wish to include a summary of the main points, where helpful.

Where data is poor or non-existent, inspectors still require guidance.  Authors should advise on what basis they estimate actual risk.

Benchmark risk

Whereas "actual risk" reflects how well a dutyholder has complied with the law, the "benchmark risk" reflects how well the dutyholder should have complied. When determining the benchmark risk, an inspector needs to consider the minimum legal standard and any guidance on how a duty holder may meet its legal duties. Therefore authors should present information about benchmark risks in a manner that guides inspectors to the standard(s) that are relevant to a given scenario.

When describing benchmark risks for different scenarios, authors should not consider how compliance affects the elements of the corresponding actual risks. This is not the purpose of the EMM. As will be described below, the purpose of the EMM is to compare the risks from a situation encountered by an inspector with the risk that would have existed, had the dutyholder fully complied with the law.

Actual risk and benchmark risk should be considered completely separately. For example; an inspector might find a situation where there was a very good chance that a worker's arm would be amputated by a poorly guarded machine (a probable likelihood of serious personal injury) yet had the dutyholder complied to the standard required by law, the worst that could happen was that a worker might bump a knee on a properly guarded machine (a remote likelihood of a minor injury).

Therefore, OG assisting inspectors to determine benchmark risks is more likely to concentrate on describing, or directing readers to, authoritative guidance on the expected standards of compliance, for example, relevant ACOPs, Codes of Practice, domestic and European standards, and other OG.

Often, authors will need to explain the reasonable practicability of safeguards and systems of work in relation to the scenarios employed to explain actual risk.

Inherent in this approach and the nature of the EMM, is the acknowledgement that once the accepted standard of compliance has been achieved, there may still be some remaining risk. Authors should therefore describe for indicative scenarios any remaining risks in terms of the descriptors 'likelihood' and 'consequence'.        

Risk gap

Following the approach advocated above, using the risk-gap tables in the EMM to compare what a situation was like with what it should have been like, will be straightforward.

Authors may wish to give tightly prescribed examples of the risk gap for specified situations and also where multiple defects occur. However, it must be made clear in the guidance that the examples are illustrative only. Inspectors must be reminded that they must come to an enforcement decision that is based on what they find in a given situation.

Initial enforcement expectation (IEE)

Having determined a risk-gap, use of Table 5.1 of the EMM to establish the IEE should be straightforward. However, some EMM users have difficulty in deciding on the compliance standard to employ.

Authors can assist greatly by identifying the standards that apply to the situational examples employed. The key consideration is "where the dutyholder had to go to decide exactly what had to be done to comply with the law".

For example; when considering the standard relating to edge protection around a working platform at height, a dutyholder needs to consult Schedule 3 of the Work at Height Regulations 2005. This is a "Defined" standard.

If deciding how to guard a particular machine, the dutyholder may have to consult the relevant BSEN. This is an "Established" standard.

Authors have addressed this matter successfully by means of tables.

Compliance and administrative arrangements and permissioning regimes

Authors of OG that considers administrative arrangements or compliance with permissioning regimes should give guidance on interpretation of the descriptors in Tables 4, 5.2 and 5.3 of the EMM.

This is particularly important since, due to the varying details and methodology of each regime, the EMM does not have extensive information on these descriptors.

In some circumstances inspectors have to decide whether a matter under consideration is risk based or a compliance/administrative matter. An example is the absence of a certificate of thorough examination and test for a vehicle lift;

• Where the workplace and lift are in good order and there is a long history of certificates being available, the matter may be regarded as an administrative matter.
• However, if the workplace is not in good order and the lift is patently in poor condition with no record of effective maintenance, the lack of a certificate is more likely to be risk related.

Authors should identify such circumstances and provide criteria to assist inspectors decide how to address such matters.

Dutyholder and strategic factors

The EMM makes it quite clear that the IEE is an initial indication of enforcement action and that dutyholder and strategic factors need to be applied to come to a final decision. However, there may be factors that are particularly pertinent to the subject matter of the OG. If this is the case, authors should identify those factors and provided criteria to enable inspectors to apply them in the desired manner.

Dutyholder factors

Authors should provide guidance where circumstances described below or similar appertain.

• The author's Sector may have relevant information on the resources or restructuring of a company nationally that affects ability to deliver improvements. If information about central interventions or recurrent poor/good standards is available this should be included.  This affects considerations on inspection history.
• The author's sector may have taken a policy decision that, when applied locally, will affect the enforcement outcome. His may influence decisions made about the conditions at the premises under consideration.
• Agreements on the introduction of new technology may have been reached with certain industry sectors which will influence decisions on confidence individual dutyholders will comply and when.

Strategic factors

Enforcement guidance should, where appropriate, include reference to the following:

• public interest: guidance on what a reasonable person would expect from HSE as a response to the situation described in the document. Information about the wider benefits on risk reduction or targeting the most serious risks.
• vulnerable groups: guidance on vulnerable groups where risks may be increased or the public interest justifies particular action.
• initial and long term impact on client: guidance where national factors are an important consideration.
• impact on other dutyholders: guidance where a particular course of action on one client could have both a positive or negative impact on other clients in related areas or activities. An example would be major employers or public services.
• functional impact: guidance where the net benefit of enforcement action may be influenced by the national picture.

Enforcement conclusion and action plans

Although the enforcement conclusion and any action plans for remedial action are matters for the inspector, OG may request feedback on conclusions and the outcomes of action plans. Authors may require this information to help inform and develop future strategies or guidance.