The powers of the Health and Safety Executive

Given the current COVID-19 pandemic, and the new Government health and safety requirements which businesses must undertake to manage the risks posed by COVID-19  in the workplace the HSE has restarted site visits following lockdown. But, do you know what powers the HSE have when they visit your business? It may surprise you.

“Inspectors appointed by an enforcing authority under section 19 Health and Safety at Work Act (HSWA) have extensive powers to carry into effect any of the relevant statutory provisions.”

As listed on the HSE website, the powers HSE inspectors have are:

• Entry to any premises which the inspector things necessary to enter for the purpose of enforcing HSWA and the relevant provisions. They may enter at a ‘reasonable time’, unless they believe a dangerous situation is occurring.
• To bring a police officer – if they have reasonable cause to apprehend serious obstruction.
• Take photographs, measurements and recordings, take samples and carry out tests on articles and substances that appear likely to cause harm.
• Order areas to be left undisturbed.
• Request, inspect and take copies of documentation.
• Question anyone who they believe may provide them with relevant information, asking them to sign a declaration of the truth for their answers.
• Require facilities and assistance to be provided.
• Seize and make harmless (by destruction if necessary) any article or substance which they have reasonable cause to believe is a cause of imminent danger of serious personal injury.

What should you do if an inspector calls?

Our advice should an inspector call is to be polite and comply with any reasonable requests they make. Being rude and obstructive will not help your cause and you may also be committing an offence under the HSWA.

Following a visit, the inspector may do any of the following:

• Give you advice, verbally or in writing, about some improvements you could make to health and safety in your workplace.
• Issue a notification of contravention: A notification of contravention (NoC) is a document or letter that tells you about health and safety laws you’ve broken. It also explains how you’ve broken them. A NoC will tell you what you need to do to stop breaking the law. The inspector will only give you a NoC if they think you are in ‘material breach’ of the law. This means the inspector thinks you have broken the law seriously enough for them to write to you about it. If the inspector gives you a NoC, you’ll have to pay for the cost of the visit.
• Issue an improvement notice: An improvement notice will tell you: what’s wrong, any changes that you may need to carry out make to put things right and also how long you have to carry out the changes. You will be given at least 21 days to make any changes and you should be aware that you will commit a criminal offence if you don’t make the changes in the time allocated to you.
• Prohibition notice: You may get a prohibition notice if there is an imminent risk of serious injury or a risk in the future. For example this could be people working on a roof where scaffolding is deemed to be unsafe.The prohibition notice orders you to stop doing whatever it is that is deemed unsafe until you have made it safe. For example, keeping workers off a roof until you fix any unsafe scaffolding.  It is important to note that you commit a criminal offence if you don’t comply with a prohibition notice.The worst case outcome for any business from a HSE inspector’s visit is prosecution. The HSE can prosecute you for breaking health and safety laws or for failing to comply with an improvement notice or a prohibition notice. The courts can fine you and also send you to prison.

Fee for intervention

If you are given a notification of contravention you will have to pay a fee. This is called a ‘fee for intervention’ (FFI).The fee will include the costs for the time of the entire original visit. It may also include the inspector’s time spent at your business or workplace, preparing reports,  getting specialist advice,  talking to you after the visit and talking to your workers. The fee can vary and will depend on how long the visit/s was, the time the inspector spent helping you put things right,  the time it took the inspector to investigate your case, and any time spent on taking action against you.

The FFI hourly rate is currently £157 and this must paid within 30 days of receiving the invoice, so with this in mind the possible costs from an FFI can be considerable by the time the case is closed.

Click here to read some frequently asked questions about health and safety.