Home > Health & Safety-Enforcement and the Legal Situation

Who enforces the laws and regulations?

Two bodies enforce the various H&S laws and regulations. The Health and Safety Executive (HSE) generally cover factories, building sites, mines, farms, fairgrounds, quarries, railways, chemical plant, offshore and nuclear installations, schools, hospitals and other workplaces. Local authorities cover shops, some warehouses, most offices, hotels and catering, sports, leisure, consumer services and places of worship. The addresses and telephone contact numbers of both can be found in local telephone directories or on their websites.

What is the purpose of enforcement and how is it done?

The obvious purpose is to find and punish those who flout the laws and regulations. This is usually the action of last resort. The more helpful and positive purpose of these enforcing authorities is to prevent harm to employees, workers and the public by actively promoting compliance with the regulations and helping employers to achieve this.

Enforcing authorities use several methods to help them secure compliance with the law. These include:

• publication of codes of practice and guidance documents;
• provision of information and advice (both face to face and in writing);
• issuing warnings (usually written);
• issuing improvement notices (e.g., ‘do x by date y’);
• issuing prohibition notices (e.g., ‘stop doing or operating x immediately’);
• issuing formal written cautions;
• initiating prosecutions for serious breaches.

Provision of information and advice:

Enforcing authorities will normally attempt to correct non-compliance in the first instance by giving information or advice. Where non-compliance presents immediate and serious risk, however, more serious enforcement methods may be used immediately. The HSE also publish numerous codes of practice and guidelines on how to comply with the various laws and regulations.

Approved codes of practice (ACOPs): – issued by the HSE have special significance and legal status. If you follow the guidance and provisions of an ACOP you will be deemed to have done all that is necessary to comply with the law. If persons are prosecuted for a breach of H&S law and did not follow the provisions of an ACOP, then the onus is on them to show that they complied with the law in another way that is equally good. Guideline documents issued by the HSE or local authority do not have quite the same legal status as ACOPs, nevertheless, if you do follow the guidance given, you will almost certainly have done all that is required by the law. 

A word of advice on asking for advice:

If you ask your HSE or local authority inspectors for advice, they will surely give it as best they can. This advice will probably, and understandably, be conservative and cautious because they may at some future time be faced with the need to take strong action against or even prosecute the company or person, they give the advice to. If you really do not have any idea about how to comply with a certain aspect of a regulation, then you can ask the open question ‘What should I do?’. It is better, however, to consider the particular compliance issue yourself, work out a plan of action that you believe will meet the requirements and then (if you are not sure) ask the enforcing authority for comment. This does not mean that you will ‘get away’ with not complying properly, but it should help you to arrive at a solution that you find practical and achievable in your situation.

Proportionality (action proportional to the risk):

Some H&S legislation is precise and prescriptive, but much of it is not and requires the exercise of judgement and common sense. For example, you must report a ‘reportable accident’ to the ICC (Incident Contact Centre) within 10 days. This is fairly precise and prescriptive. An example of a frequent and less precise requirement is where employers are required to avoid the need for manual handling that involves the risk of injury so far as is reasonably practicable. This is not precise, and judgement will be required by the employer and the enforcing authority. In enforcing this example requirement, the enforcing authority will exercise proportionality.

Proportionality, in this context, means any enforcement action taken should be related to the risk (in this context, risk means the seriousness of the consequences and the likelihood of it happening). If there is a minor non-compliance and the risk is small, then the enforcement approach will probably be one of giving advice. If the non-compliance is serious and the consequential risk is high, then a much more robust enforcement approach can be expected, e.g., issue of an improvement or prohibition notice and, in the extreme, prosecution.

Enforcement contains the following words on proportionality:

Proportionality means relating enforcement action to risks. Those whom the law protects and those on whom it places duties (duty holders) expect that action taken by enforcing authorities to achieve compliance or bring duty holders to account for non-compliance should be proportionate to any risks to health and safety, or to the seriousness of any breach, which includes any actual or potential harm arising from a breach of law.

Note the use of the word ‘potential’. Enforcing authorities can and will take action in the absence of any actual injury or harm if the potential for injury or harm has been allowed to exist.

Improvement notices and prohibition notices – what are they?

An improvement notice is an official written communication from the enforcing authority (HSE or local authority) to the duty holder (usually the owner/director/senior manager of the facility), instructing him or her to make specified improvements or changes by a specified date.

A prohibition notice officially communicates an instruction to stop a specified activity/shut down certain equipment immediately because the risk is unacceptably high.

Reasonably practicable – what does this mean?

Much of H&S law and regulations require employers do something or not do something if it is reasonably practicable. For example, in Regulation 4 of the Electricity at Work Regulations it states ‘systems shall be constructed and maintained so as to prevent, as far as is reasonably practicable, danger’. In Regulation 13 of The Workplace (Health, Safety and Welfare) Regulations it states ‘So far as is reasonably practicable, suitable measures shall be taken to prevent . . . any person falling a distance likely to cause personal injury, . . . ’. There are many, many more regulations like this.

The enforcing authorities will expect to see relevant good practice used. So, if it is good practice in your industry/ activity to do X, then you will need a fairly good reason for not doing it. Conversely, if you think you are required or are advised to go way beyond what you know to be ‘good normal’ practice, then check it out and challenge it. Ultimately, the courts will decide what is reasonably practicable in particular cases.

Who will receive the most attention from enforcing authorities?

Enforcing authorities like to pay most attention to those activities that cause the greatest risks and where hazards are least well controlled. A facility that has low risk activities but is considered to pay little serious attention to the health, safety and welfare of its employees, or is considered to be poorly managed, will also receive more attention than a well-managed, well-operated one.

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