Flashcards in Enforcement of H&S Law Deck (47)
Which section of HSWA covers the identification of the organisations responsible for the enforcement of H&S legislation?
Section 18 of HSWA
Generally, who are the two authorities responsible for enforcement?
HSE - Industrial Premises
Local Authority - Commercial Premises
Name the Regulation which is responsible for the arrangements for the division of enforcement responsibilities
The Health and Safety (Enforcing Authority) Regulations 1998
List four areas enforced by the HSE
Any activity in a fairground
Any activity in a mine or quarry
List four areas enforced by Local Authorities
Places of Worship
List 8 general powers of an Inspector and the section that sets out these powers
At any reasonable time where he is of the opinion that a dangerous state exists, enter any premises which he has reason to believe it is necessary for him to enter, in order to exercise his powers
Make any necessary examinations and investigations
Take photographs and such measurements as he thinks is necessary
Retain any article or substance for such time as is necessary for examination
Require the production of, inspect and take copies of any books or documents which are required to be kept by the Regulations
Take a police officer with him if he has reasonable cause to believe he may meet with serious obstruction in the execution of his duties.
He may direct that those premises or part of them shall be left undisturbed for so long as is reasonably necessary for the purpose of investigation or examination
Require any person whom he has reasonable grounds for believing may be able to give information relevant to any examination or investigation he is concerned with, to answer such questions as the inspector thinks fit to ask and to sign a declaration of the truth of his answers.
How are criminal offences under HSWA classified under Law
Triable summarily or Triable either way
The majority of offences are dealt with under the 'Either Way' procedure.
Upon summary conviction list the maximum penalties
Up to Six Months Imprisonment
Upon conviction on indictment list the maximum penalties
Unlimited Fine and/or up to 2 years imprisonment
List the penalties for non-compliance with an Improvement or Prohibition Notice
£200 for every day that non-compliance continues
Explain the purpose and aim of the Deregulation Act 2015
This Act limits the scope of Section 3, HSWA to self-employed persons who conduct an 'undertaking of a prescribed description' - This means work in high risk areas such as agriculture, asbestos and gas.
The aim is to reduce the regulatory burden on the self-employed unless they are involved in activities that expose themselves and others to significant risk. This means that Section 3 no longer applies to all self-employed persons and only to those carrying out specific types of higher risk work.
List the principles detailed in the Enforcement Policy Statement
Proportionality of Enforcement
Consistency of Approach
Describe what is meant by 'proportionality of Enforcement' under the EPS.
Enforcement should be in proportion to any risks to Health & Safety, or to the seriousness of any breach of law. Enforcing authorities should take into consideration how far the duty holder has fallen short of what the law requires and the extent of the risks to people arising from the breach.
Describe what is meant by 'Consistency of Approach' under the EPS.
Duty holders managing similar risks expect a consistent approach regarding advice given, the use of enforcement notices, decisions on whether to prosecute and the response to incidents. The HSE recognises it is not that simple and considers a number of factors including: The degree of risk, attitude and competence of management, history of incidents and previous enforcement action.
Describe what is meant by 'transparency' under the EPS.
Duty holders need to understand what is expected of them and what they should expect from the enforcing authorities. They should also be clear about what they do and do not have to do. This means clarity on what the statutory requirements are and what is simply guidance that is desirable but not compulsory. Transparency also involves making sure that employees and their representatives are kept informed about any decisions made and actions taken.
Describe what is meant by 'targeting' under the EPS.
This ensures that resources are directed to those whose activities give rise to the most serious risks or where the hazards are least well controlled. Action needs to be focused on the duty holders who are responsible for the risk and who are best placed to control it. Enforcing authorities should have systems to prioritise inspections, investigations or other regulatory contacts based on risk.
Describe what is meant by 'accountability' under the EPS.
Enforcing authorities should have policies and standards in place against which they can be judged, and an effective and accessible procedure for dealing with comments and complaints. The leaflet 'What to expect when a Health & Safety Inspector calls' sets out HSE's procedures for dealing with comments and handling complaints. There is also the right of appeal to an Employment Tribunal in the case of statutory notices. Local authorities have their own complaints procedures but details depend on the individual authority.
Explain the purpose of the HSE's Enforcement Management Model
The HSE's Enforcement Management Model is a system that helps inspectors to make enforcement decisions in line with the HSE's Enforcement Policy Statement. The EPS sets out the principles inspectors should apply when deciding what enforcement action to take in response to breaches of H&S legislation. The key principle is that enforcement action should be proportional to the H&S risks and the seriousness of the breach.
List the four aims of the Enforcement Management Model
Provides inspectors with a framework for making consistent enforcement decisions
Helps managers monitor the fairness and consistency of inspectors enforcement decisions in line with the HSE's policy
Assists less experienced inspectors in making enforcement decisions
Helps those directly affected by enforcement to understand the principles inspectors follow when deciding on a particular course of action
What is meant by a material breach
A material breach is when, in the opinion of a HSE inspector, there is or there has been a contravention of H&S law that requires them to issue notice in writing of that opinion to the duty holder.
When a HSE Inspector cites a material breach; what form of written notification may this take? give all three options.
A notification of contravention
A prohibition or improvement notice
When a HSE Inspector cites a material breach; what information must be included within the written notification?
The law that the inspectors opinion relates to
The reasons for their opinion
Notification that a fee is payable to the HSE
How does an assessor decide whether the duty holder is in material breach of the law?
HSE must apply the relevant guidance abd the principles of HSE's existing decision making frameworks such as the Enforcement Management Model and the Enforcement Policy Statement
Explain the purpose of the Fee for Intervention
A fee for intervention is a cost recovery scheme which applies where the HSE is the enforcing authority. This allows the HSE to recover its costs from duty holders who are found to be in material breach of H&S law. The fee is based on the amount of time that the inspector has had to spend identifying the contravention, helping to put it right, investigating and taking enforcement action.
When may an Improvement Notice be issued?
These may be issued for any activities to which relevant statutory provisions apply. If an inspector is of the opinion that a person is contravening one or more of the relevant statutory provisions, or has contravened one or more of those provisions in circumstances that make it likely that the contravention will continue or be repeated, he may serve a notice stating his opinion, with reasons, and requiring that person to remedy the contravention within a specified period.
What is the minimum timescale for remedy following an improvement notice?
The period must not be less than the period within which an appeal against the notice may be brought; this period is 21 days.
Who is an improvement notice served on?
An improvement notice is served on the person responsible for the breach of the law. If the law is breached imposes obligations on employers, but the breach is by an employee, then the notice is served on the employer.
When may a Prohibition Notice be issued?
This is issued where the inspector is of the opinion that the activities involve, or may involve, the risk of serious personal injury.
The notice shall state that the inspector is of the opinion as mentioned and shall specify the matters that give rise to the risk and direct that the activities that the notice relates to shall not be carried on by, or under the control of, the persons on whom the notice is served, unless they have been remedied.
When are activities stopped following a prohibition notice?
Immediately - a prohibition notice MAY be deferred, only if stopping an activity immediately would give rise to risk.