Health and Safety Enforcement Policy

This section sets out the policy relating to enforcement of health and safety legislation. It details the general principles of enforcement and embraces those set out in the ‘Regulators' Code’ issued by the Better Regulation Delivery Office and Section 18 Guidance issued by the HSC.

More specific procedures concerned with statutory notices, emergency action, formal cautions and prosecutions are detailed in enforcement procedures. These procedures take account of all Codes of Practice and guidance issued by HSE and ‘The Code for Crown Prosecutors’.

Enforcement officers by necessity as professional officers have considerable discretion in decision making and initiating enforcement action. Such action can range from informal advice, information and support through to formal enforcement mechanisms, including the use of statutory notices and prosecution.

This part applies to all dealings, formal and informal, between officers and businesses, all of which contribute to securing compliance with the law. It will provide policy standards, aid professional judgements and decision making and ensure both consistent and effective enforcement.

The core expectation for those we deal with, quite reasonably, is for us to be professional, fair, co-operative and consistent in our approaches. Businesses and the public also expect local authority actions to result in the remedying of potentially risky situations and for those guilty of serious offences to be adequately punished.

We will adopt a positive and proactive approach towards ensuring compliance by:

• helping and encouraging businesses to understand and meet regulatory requirements more easily; without imposing unnecessary additional cost;
• assessing whether other social, environmental and economic outcomes can be achieved by less burdensome measures, and
• responding proportionately to regulatory breaches.

Enforcement should be informed by the principles of proportionality in applying the law and securing compliance; consistency of approach; targeting of enforcement action, openness about how we operate and what businesses may expect and helpfulness in providing advice and assisting with compliance.

Appendix 1 sets out the standards of service businesses should expect to receive.

It will be expected that enforcement officers, when making decisions and communicating with businesses, will follow these principles, together with relevant codes of practice and guidance. The Primary Authority Partnership scheme will be used where applicable.

When considering formal action, officers will perform an assessment in accordance with the Health and Safety Executive’s Enforcement Management Model (EMM). Where the proposed enforcement action deviates from the EMM, a management review will be undertaken by the Team Leader.

Any departure from this must only occur when the following criteria are complied with:

i) in exceptional circumstances;

ii) where actions are capable of justification;

iii) where there has been full consultation with the Team Leader or Environmental Health Manager (Commercial).

In exceptional circumstances when officers become aware that they are considering measures which may be inconsistent with those adopted by other local authorities, formal action should be delayed to allow the matter to be discussed with other regulatory partners e.g. the local liaison group. Reference will also be made to the Primary Authority where appropriate. However, this would not be applicable in cases where there is a serious risk to public health.

Any sanctions or penalties being considered should:

• aim to change the behaviour of the offender;
• aim to eliminate any financial gain or benefit from non-compliance;
• be responsive and consider what is appropriate for the particular offender and regulatory issue
• be proportionate to the nature of the offence and the harm caused;
• aim to restore the harm caused by regulatory non-compliance, where appropriate; and
• aim to deter future non-compliance.

This policy will be reviewed periodically in response to new legislation and guidance issued by central government and HELA.

All enforcement actions and advice must be proportional to the risks posed to the public and employees and the seriousness of any breach of legislation.

When considering enforcement action, consideration should be given to the cost of measures required to reduce the risk weighed against the benefit to be gained by reducing the risk.

In addition, there should be a staged approach to enforcement action with increasing degrees of enforcement as management of businesses fails to respond to previous requirements. Officers should provide an opportunity for dialogue in relation to the advice, requirements and decisions.

The only exceptions to the above approach would be where a serious and/or imminent risk to safety or health exists.

The staged approach to enforcement is further detailed in enforcement procedures.

Consistency of approach does not mean uniformity. It means taking a similar approach in similar circumstances to achieve similar ends.

Businesses expect consistency from enforcing authorities in advice given, the use of statutory notices, decisions on prosecution and responses to complaints.

It is recognised however, that in practice it is not simple, due to the wide range of variables faced. Therefore, it is expected that officers will use their professional judgement and exercise discretion, in conjunction with this policy, when coming to a decision on appropriate action.

The following arrangements will be in place in order to promote consistency of approach:

i) officers will perform validation exercises relating to joint inspections on an annual basis;

ii) Team leaders will periodically accompany all officers on an inspection to assess the consistency of approach between officers;

iii) officers openly discuss cases at team meetings and/or with Team leaders to provide a consensus of opinion;

iv) all formal action will be ‘signed off’ by the Team leaders and where prosecution is being considered, by the Environmental Health Manager (Commercial) and Head of Environmental Health;

v) correspondence and file records will be checked and monitored on a regular basis;

vi) where inconsistencies arise, appropriate training/coaching will be given by the Team Leaders;

vii) in the event of differences of opinion or where there is a need for clarification, approaches will be made to other regulators e.g. the Health and Safety Liaison Group and the Primary Authority where applicable;

viii) officers will participate in inter-authority consistency exercises and change working practices, if necessary, to achieve consistency;

ix) Buckinghamshire Council will take an active role in the Health and Safety Liaison Group;

x) reference will be made to appropriate central government guidance;

xi) reference will be made to appropriate guidance issued by a Primary Authority.

Inspections and enforcement action will be targeted primarily at those activities giving rise to the most serious risks or where hazards are least controlled and that action is focussed on those responsible for the risk and who are best placed to control it.

The prioritisation of inspections will be based on guidance issued by the HSE and informed by the HSE Strategy.

Enforcement officers will help businesses to understand what is expected of them (and what would not be expected) and what they should expect from the enforcing authorities.

Confirmation of all work (initial inspections, revisits and complaints) will be given in writing to business managers and as appropriate to head offices. Information will clearly explain what the non-compliant item or activity is, the advice being given, actions required or decisions taken and the reasons for these.

There will be a clear distinction between legal requirements and good practice recommendations (either verbally or written).

Where notices have been served and are on a Public Register, this will be available for viewing free of charge.

If formal requests for information are received from a third party, they will be handled in line with requests for information under the Freedom of Information Act.

Businesses will be made aware the Corporate Complaints Procedure when appropriate, the informal appeals procedure to the Environmental Health Manager (Commercial) in the first instance and any statutory appeals procedure against enforcement. This is to be included in correspondence to businesses following inspections.

The principle is to actively work with businesses to advise on and assist with compliance wherever possible. To this end, officers will identify themselves by name and provide a contact point and telephone number for further dealings. Businesses will be encouraged to seek advice/information; information will be freely available on the Council’s website with links to those produced by central government. When appropriate and resources permit, training courses/seminars will be proved for businesses on specific issues.

Subject to the general provisions of this Enforcement Policy, recommendations for prosecutions of individuals will be made if warranted. The role played by individual directors and the management chain will be taken into account, particularly when an investigation reveals that the offence was committed with their consent or connivance or to have been attributable to neglect on their part.

Enforcement action may be taken against employees and others, including managers, company officers etc. under the Health and Safety at Work etc. Act 1974, Sections 7, 8, and 37(1). Prosecution will only be considered against the employee if they have been warned before, either by an authorised officer or by the business, or the employer can demonstrate that they have taken all reasonably practicable steps to ensure that safety devices were in place and the offence by the employee was flagrant.

Any authorised officer called upon to investigate a fatality should ensure that early contact with the bereaved family is made and/or arrangements made to meet the bereaved as soon as they wish in order to explain the local authority’s roles and responsibilities and to provide them with relevant information. The Team Leader or Environmental Health Manager (Commercial) will normally take responsibility for conducting the meeting with the bereaved family and act as the Family Liaison Officer, supported if necessary, by another officer but not necessarily the investigating officer. This should take place as soon as possible, bearing in mind the convenience and wishes of the family. Officers should also keep relatives informed of the progress and outcome of the investigation.

Where there has been a breach of the law leading to a work related death, consideration will be given whether the circumstances of the case might justify a charge of manslaughter. To this end, the investigating officer will liaise with the Police, Coroner and the Crown Prosecution Service (CPS) in accordance with ‘Work-Related Deaths – A Protocol for Liaison’ and ‘Practical Guide’. If they find evidence suggesting manslaughter, this will be passed to the Police or where appropriate, the CPS. If the Police or CPS decides not to pursue a manslaughter case, the local authority should consider prosecution under health and safety legislation.