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Health & Safety Law 

The Law

  • The main duties of an employer to employees and others are contained within Sections 2 to 7 of the Health & Safety at Work Act 1974. These are what are usually called the general duties of an employer.
  • For example, Section 2(1) says that “It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees”.
  • In addition to the general duties, however, the health and safety regime provides for the introduction of various regulations often governing particular industries. A contravention of those regulations can also result in an offence being committed.
  • The legislation also provides for the issuing of improvement notices where an HSE Inspector is of the opinion that a person is contravening one of the statutory provisions or has contravened one of those provisions in circumstances that make it likely the contravention will continue to be repeated; or prohibition notices if an Inspector is of the opinion that if an activity carried on, it would involve the risk of serious personal injury.
  • A breach of an improvement or prohibition notice is itself an offence.
  • In extreme circumstances where a fatality has unfortunately occurred, the law allows for the prosecution of individuals and corporate bodies for manslaughter where it can be shown that the death resulted from gross negligence.
  • The law in health and safety matters is complex and any person or organisation who is investigated by the Health & Safety Executive should seek proper legal advice.

Investigations

  • It is important to understand that a Solicitor’s role in advising a client does not only start after an investigation has taken place and a decision has been made to bring action against an individual or company.
  • Part of our role is to provide advice during the investigation stage.
  • Advice can be given in relation to responses to be made to any notice requiring the provision of information as well as interviews under caution. Requests will often be made for individuals to be interviewed under caution in accordance with the Police and Criminal Evidence Act 1984. These are significant interviews as the replies, if any, can be used in any subsequent prosecution.
  • Proper advice needs to be sought as to whether to attend and undertake such an interview and representation should always be arranged for the actual interview itself.
  • We have extensive experience of advising persons during interview under caution.

Prosecution

  • Not all investigations by the HSE will result in prosecution. If it does occur, a summons would be issued for a first appearance in a Magistrates’ Court.
  • It is often possible to persuade the Courts that the matters can be dealt with within the Magistrates’ Court system where the penalties on conviction are less severe than in the Crown Court.
  • Sometimes, however, matters are considered too serious to be resolved by the Magistrates, or the person being prosecuted would prefer to have their case heard before a jury. In those cases the matter would be dealt with by the Crown Court.
  • In cases where there has been a fatality, the case will almost always be dealt with in a Crown Court.
  • The decision as to where a case should be heard can be a difficult and complex one. We will always advise a client with great care as to which court should deal with their case.

Improvement Notices

  • Section 21 of the Health & Safety at Work Act 1974 allows for the issue by the HSE of an improvement notice. This will happen where an Inspector is of the opinion that a person –

(a) is contravening one or more of the relevant statutory provisions; or

(b) has contravened one or more of those provisions in circumstances that make it likely that the contravention will continue or be repeated.

  • The notice will state this opinion, giving the details of the provisions they believe to have been contravened and the reasons why. The notice will also require the person who is the subject of the notice to remedy the contravention within a specified period.
  • It is important for somebody who receives such a notice to know that a failure to comply with the notice is a criminal offence, punishable by imprisonment.
  • It is possible, however, to appeal against the issuing of an Improvement notice, The person receiving the notice may feel that they disagree with the Inspector’s opinion as to whether a regulation or provision has been contravened. In those circumstances, careful consideration needs to be given as to whether an appeal against the notice should be lodged.
  • We are able to provide advice to any person or organisation who has received an improvement notice and what action, if any, needs to be taken in relation to it.

Prohibition Notices

  • Section 22 of the Health & Safety at Work Act 1974 provides for the issuing of an prohibition notice as regards any activities where an Inspector is of the opinion that if they are carried on they will involve risk of serious personal injury.
  • In those circumstances an HSE Inspector may serve on a person a notice setting out that opinion and the matters which give rise to the risk. The notice will also specify the statutory provisions which in their opinion are being contravened and direct that the activities to which the notice relates not be carried on unless the matters specified in the notice have been remedied.
  • A breach of an prohibition notice, i.e. carrying on the activities despite having received the notice from the HSE Inspectors not to, is a criminal offence that carries a risk of imprisonment.
  • It is possible, however, to appeal against the issuing of an improvement notice. Any person or organisation who is served with an prohibition notice can seek legal advice from ourselves at an early stage as to the contents of the notice and whether or not it should be appealed.

Appeals

  • A person served with a prohibition or improvement notice can appeal against the issue of those notices to an Employment Appeals Tribunal.
  • Where an appeal is lodged, in the case of an improvement notice, then the effect of that notice shall be suspended until the appeal is finally dealt with or withdrawn.
  • In the case of a prohibition notice, then the same can occur but only where the Tribunal directs that this is the case and then only from the time that the direction has been given by the Tribunal.
  • As with any conviction within the criminal law process, rights of appeal exist through the usual criminal appeals system.
  • We are able to give advice following the issuing of an improvement or prohibition notice as it may be that the person who is in receipt of the notice may disagree with the Inspector’s opinion as to the contravention of regulations and the need to either cease activities or to undertake improvements to the way in which activities are carried out.
  • In relation to advice on appeal following a conviction, we will always provide advice as to whether or not there are grounds of appeal against either the conviction or the sentence imposed.

Costs and Funding

  • A company prosecuted will not be eligible for a Representation Order (previously known as legal aid). However, an individual employer or an individual officer of a company who is prosecuted would be able to apply to any Court, if prosecuted, for a full Representation Order.
  • An individual who needs advice during the investigative or interview stage might be eligible for a more limited form of legal aid called advice and assistance. However, this would depend on the means of the individual concerned.
  • We will always be happy to give detailed and specific advice in each case as to the eligibility of an individual for legal help or a Representation Order.

How we can help

  • We can be on hand at short notice to advise right from the time that any unfortunate accident occurs. We can deal with the Health & Safety Executive, represent clients during interview under caution and, of course, in any case that comes before the Courts.
  • In dealing with the HSE during investigations or the issuing of prohibition or improvement notices, our proactive work is designed to try and avoid the possibility of a prosecution ensuing.