Workplace incidents and fatalities: enforcement

Out-Law Guide | 21 Oct 2020 | 4:59 pm | 3 min. read

The UK's Health and Safety Executive (HSE) and other regulators have a variety of criminal enforcement methods available to them when investigating a health and safety incident in the workplace.

We have set out these enforcement methods below. This guide should be read in conjunction with our detailed guide Workplace accidents and fatalities: advice for UK employers.

If you receive one of the notices outlined below and wish to appeal, you should seek legal advice at the earliest opportunity because strict time limits apply. If you receive a notice of contravention, you should obtain advice before responding to avoid inadvertently accepting being in material breach.

Notification of contravention

An HSE inspector can issue a written notification of contravention where material breaches of health and safety law are identified during a site visit. This notice identifies the provisions of the law the inspector considers have been breached, and the reasons for that opinion.

The HSE can still take further enforcement action or prosecute after a notification of contravention is served, as well as charging the costs associated with their work as a fee for intervention.

Improvement notice

If the inspector is of the opinion that someone is or has contravened health and safety law, and it is likely that the contravention will continue or be repeated, they may serve an improvement notice requiring that person to remedy the contravention within a set period of time.

An improvement notice can be appealed, and does not need to be complied with while the appeal is being progressed.

Failing to comply with an improvement notice is a criminal offence. An improvement notice will be added to a company's record and be made publicly available. This can affect a previous good reputation, and may impact on tenders for new work.

Prohibition notice

A prohibition notice can be served if a regulator is of the opinion that a state of affairs or certain activities involve a risk of serious personal injury. The prohibition notice will direct that the relevant activity shall not be carried out until any associated contraventions of health and safety law are remedied.

This notice can be appealed, but the prohibition must still be complied with during the time of appeal.

Failing to comply with a prohibition notice is a criminal offence. A prohibition notice will be added to a company's record and be made publicly available. This can affect a previous good reputation and may impact on tenders for new work.

Prosecution in England, Wales and Northern Ireland

Duty holders, both individuals and organisations, can be prosecuted where it is alleged that there has been a serious breach of the law.

Health and safety offences can be heard in either the Magistrates Court or the Crown Court. The penalty in both courts is an unlimited fine for a company, or an unlimited fine and/or up to two years imprisonment for an individual. In Northern Ireland, a limit of £20,000 per charge applies to penalties at the Magistrates' Court, but Crown Court fines are unlimited.

Before deciding whether to proceed with a health and safety prosecution, the HSE will consider all the information it has obtained in its investigation including any written or oral representations made under caution, alongside the relevant HSE Enforcement Management Model. It will apply the Code for Crown Prosecutors to decide whether there is sufficient evidence to provide a realistic prospect of conviction and that the prosecution is in the public interest.

Prosecution in Scotland

Again, duty holders, both individuals and organisations, can be prosecuted where it is alleged that there has been a serious breach of law.

In Scotland, the Crown Office and Procurator Fiscal Service (COPFS) is the sole public prosecutor, and is tasked with the prosecution of crime in the public interest and the investigation of all sudden or suspicious deaths. Its specialist health and safety division deals with health and safety cases, and has an established practice of liaising with both Police Scotland and the HSE. The HSE is classed as a specialist reporting agency (SRA) to COPFS and has all the powers granted by the HSWA at its disposal for the purposes of investigation.

Health and safety cases are usually heard in the Sheriff Court on summary complaint or, in the most serious cases, by solemn procedure before a judge and jury. Health and safety cases are only prosecuted before the High Court of Justiciary in exceptional circumstances. Fines of up to £20,000 and up to 12 months imprisonment can be given on summary conviction. Unlimited fines and up to two years imprisonment can be given under solemn procedure.

Once the police, HSE or both have carried out an investigation into the incident, they will prepare a report for submission to COPFS setting out the evidence gathered, analysis of the potential breaches and a recommendation for further proceedings. COPFS will then review the evidence gathered and decide whether there is sufficient evidence that a crime took place and that the accused, whether an individual or company, was the perpetrator; and if a prosecution is in the public interest, with reference to the Prosecution Code.