When an inspector serves an Improvement Notice or a Prohibition Notice it is important that employers treat them as important. The Notice is a formal notification by the Inspector that things are a long way from being as they should; that the situation has to be put right immediately or within a set time; and that failure to do so will in itself be an offence. The Notice explains this. The inspector normally makes the same point in their covering letter and will enclose as a matter of course a Notice of Appeal to the Employment Tribunal.
Why then, with all this information, would some employers choose not to take action? Is it because they really don’t understand what is required, is it because they are too busy, is it simply a reflection of their general attitude to managing hazards and risks to and in their business? Whatever the answer we do know that they are routinely prosecuted for their failure to comply and that for the enforcing authority it is an ‘easy’ case. Recent Health and Safety Executive (HSE) press releases have reported a number of such cases.
- The managing director of a company recycling wood-waste prosecuted at Stevenage Magistrates’ Court. His company had been served with three improvement notices that were not complied with. The HSE chose to prosecute the managing director, the sole director, for its failure to comply. He was fined £8,000, ordered to pay £2,089 in costs and has a criminal record after pleading guilty to a criminal safety offence.
Had the defendant taken the simple remedial action for some relatively minor breaches the case would have been easily avoided; compliance would have been less costly.
- After a routine inspection an accident repair centre in Neath was served with an Improvement Notice. Isocyanate paints were being used in a spray booth that had not been inspected by a competent person. Even though HSE staff explained the need for compliance and how to comply Swansea Magistrates’ Court was told that the owner was uncooperative and failed to comply with the notice despite their best efforts. This intransigence cost the business a £20,000 fine and costs of £4,666 when it pleaded guilty to an offences including failure to comply with the Notice.
- A perfectly normal routine inspection of a construction site in the West Midlands revealed issues around scaffolding and work at height that led to the issue of improvement notices. The notices required the company to arrange training and address work at height issues. Issues that, in the view of the inspector, could have been easily resolved.
The company didn’t respond and when inspectors returned to the site after the expiry date it found that the matters had not been resolved. Subsequent letters were also ignored; the company was ‘invited’ to attend an interview under caution but did not show up. Given that the company had been given every chance to take action prosecution became inevitable. At court the company admitted their guilt in failing to comply. They hadn’t responded to the notices because of pressure of work. They admitted not being organised and not taking the matter very seriously, hoping it would go away. The business was fined £15,000 plus costs of £1,617.
- Once a business has had and complied with a notice it must maintain that level of compliance. Should standards slip that failure, with previous guilty knowledge, will increase the likelihood of further enforcement action as a London fabrication company discovered to their cost. In 2011 they received and complied with Notices relating to the thorough examination of cranes. Subsequently it was found that the statutory 12 monthly examinations, an absolute requirement, had been allowed to lapse. The company admitted their guilt and faced fines and costs of almost £16,000.
With new Sentencing Guidelines for health and safety offences in force the penalties imposed for these offences could increase significantly. The guidelines emphasise that creating the risk of harm is the offence. That there has not been an injury or the fact that any potential injury would be minor may be argued in mitigation but the authorities will always emphasise prior knowledge and failure to heed the notice as very significant to culpability. And as penalties now take account of turnover rather than profit penalties may well increase by a substantial amount. It will almost always be the case that compliance will be the cheapest option.
Peninsula’s Business Safety clients in receipt of an enforcement notice are always advised to notify our 24 Hour Advice Service and seek guidance and information. Our competent qualified consultants will advise on the law behind the notice and simple pragmatic steps that will achieve compliance. In cases of doubt about the legality or content of the notice they will take further legal advice and they will be provided with legal assistance should an appeal against the notice be advised. One call to 0844 8922785 is all that is required.