INTRODUCTION

  1.  This note sets out the development of enforcement policy by the Health and Safety Commission (HSC) in the light of the Robens Report. The HSC policy is followed by both the Health and Safety Executive and local authorities. It describes how the principal enforcement activity, inspection, is planned, resourced and delivered by the Field Operations Directorate of HSE. Investigation and prosecution are also described.

POLICY

  2.  Enforcement policy stems from the Robens Report of 1972 and the Health and Safety at Work etc Act 1974.

  3.  Before then, inspectors had powers to prosecute only in the Magistrates' Court. Offences were usually for non-compliance with absolute prescriptive duties in the Factories Act. Maximum penalties were very low (£300 for an offence causing injury). Obtaining a court order to stop or remedy a dangerous practice was difficult and rare.

  4.  The Robens Report made it clear that in future the inspector's role should be preventive, advising industry (both employers and employees' representatives) about standards and good practice. Where appropriate, improvement or prohibition notices should be the inspector's preferred enforcement tool to secure improvements at workplace level. Prosecution was to be the tool of last resort, reserved for the most flagrant offences.

  5.  The 1974 Act empowers inspectors to serve improvement or prohibition notices. Inspectors continue to prosecute in Magistrates' Courts but the more serious offences are now triable either way in the Magistrates' or the higher (now Crown) Courts.

  6.  The 1974 Act's requirements of duty holders are goal-setting rather than prescriptive and mostly require steps to be taken "so far as is reasonably practicable" to ensure health and safety. Penalties for failure have been raised, with unlimited fines in the Crown Courts. In a very few instances a custodial sentence may be imposed, eg for failure to comply with an inspector's prohibition notice.

  7.  The Health and Safety Commission is responsible for giving guidance to enforcing authorities (HSE and local authorities). It is not allowed to intervene in individual cases.

  8.  The Health and Safety Executive is statutorily responsible for making adequate arrangements for enforcement. Local Authorities (460) share enforcement responsibilities with HSE on the basis of allocation of premises by regulations.

  9.  The Commission has published its guidance to enforcing authorities in its Enforcement Policy Statement, and a current copy is available to the Committee. Following the HSC Review of Regulation in 1995 it was re-issued in 1997. It is currently being reviewed, and the Health and Safety Commission will consult about the revision.

  10.  Most of inspectors' dealings with duty holders are informal—inspectors offer information, advice and support, both face-to-face and in writing. They may also use formal enforcement mechanisms, including improvement or prohibition notices, to secure improvements at workplace level and compliance with the law. Inspectors' decisions about which enforcement tool to use are informed by the principles in HSC's Enforcement Policy: proportionality, consistency, transparency and targeting. This means that enforcement action should be proportionate to the risks and the seriousness of any breach of the law, and targeted at the most serious risks and at dutyholders best placed to control them; inspectors should take a similar approach in similar circumstances to achieve similar ends; and enforcing authorities should help dutyholders understand what is expected of them and what they can expect from inspectors. Enforcing authorities are also expected to exercise discretion when deciding when to initiate a prosecution; the policy makes it clear that other approaches to enforcement can often promote health and safety more effectively but, where the circumstances warrant it, prosecution without prior warning and recourse to alternative sanctions may be appropriate.

  11.  HSE's Field Operations Directorate has developed a formal structure (the Enforcement Management Model, or EMM) for ensuring consistent enforcement decisions in line with the Commission's policy. The EMM is to be adopted by all HSE operational directorates and divisions.

  12.  Local Authorities inspect offices, shops, commercial and most leisure activities through their Environmental Health Officers. HSE runs an enforcement liaison committee (HELA) with the Local Authorities which seeks to ensure that the Local Authorities implement the Commission's enforcement policy consistently. Advice, information and training is shared so far as possible, with HSE Enforcement Liaison Officers (experienced inspectors) in each region available to Environment Health Officers for advice.

RESOURCES

  13.  Most of HSE's resources for enforcement are in its several inspectorates. There were 1,321 inspectors at 1 October 1999. This note concentrates on the inspectorate known as the Field Operations Directorate (FOD—previously the Factories, Agricultural and Quarries Inspectorates). FOD is responsible for inspection of manufacturing, agricultural, health, education, construction and other sectors not inspected by the Local Authorities or by HSE's inspectorates covering the nuclear, offshore, mining, railways, chemicals and major hazards sectors.

  14.  FOD currently has almost 500 trained inspectors working in operational groups and 132 in training. Further recruitment is planned in 2000 which—resources permitting—should bring the total numbers of such inspectors to about 690.

  15.  In 1998-99 the balance of activity by FOD was as follows:

  "Other" includes standards development, training, promotional and educational activities, leave etc. Enforcement includes formal processes to do with the service of notices, appeals and prosecutions.

INSPECTION

  16.  The planned preventive inspection programme is HSE's principal enforcement programme. An inspection, whether or not it results in formal enforcement action, is for most employers the most significant independent check on their performance and an opportunity for influencing improvement. In many cases, particularly in small firms where there is no trade union or safety committee, the inspector's intervention may be the only protection for workers' health and safety. (Firms employing fewer than 50 are 90 per cent of FOD's target population.)

  17.  An employer performing poorly can expect to be served with improvement or prohibition notices. The worst offenders will be prosecuted.

  18.  In 1998-99 HSE planned 170,000 regulatory contacts with employers, including inspections (183,000 were achieved) and served 10,844 notices (of which 4,516 were prohibitions).

  19.  The inspection programme is based upon targeted visits informed by an Inspection Rating Scheme (IRS) and the Commission's overall priorities in a particular year. The IRS currently categorises workplaces into three groups, on the basis of an inspector's assessment of performance. Issues considered include risks to health and safety and the competence of management to manage health and safety issues. In 1999-2000 those with the highest rating, approximately the top 10 per cent, will be inspected. Planning assumes that those in the lowest risk category will receive a contact (which may not be an inspection) at least once in every six years, whilst those in the middle category will normally receive an inspection visit once every six years. But this approach is currently under review to take account of various HSC initiatives, such as the development of Strategic Themes and the new Small Firms Strategy.

  20.  Previously unknown firms are treated with high priority. Workplace Contact Officers (who are specially trained administrative staff carrying out educational and promotional work) aim to contact them within eight weeks of their coming to HSE's notice and provide essential basic health and safety information. An inspector may decide to visit according to need and risk.

  21.  Workplace Contact officers play a leading role in organising mailshots, seminars and workshops which are commonly used in FOD to ensure compliance with health and safety standards.

  22.  New responsibilities such as for enforcement of working time regulations will not necessarily require immediate inspector involvement. Working Time Officers have been appointed in each region and have already dealt with 10,000 enquiries. (There have been very few complaints requiring investigation or enforcement action.)

  23.  The most likely outcome from an inspection is advice, usually confirmed by letter if a positive response is expected after discussions with managers and safety representatives. Where the inspector doubts the assurances given, an improvement notice may be served. Prohibition notices are served where an inspector discovers a situation giving rise to risk of immediate serious harm, eg an untimbered deep excavation which could collapse and bury workers alive.

INVESTIGATIONS

  24.  HSE investigates accidents to workers and members of the public, and complaints from any source about health and safety concerns. In 1998-99 32,000 investigations were carried out (plan: 29,000).

  25.  HSE's approach to investigations reflects guidance from the Commission. That in turn is reflected every year in the targets for different kinds of regulatory contact in the Commission's Strategic Plan, which is approved by the Secretary of State. HSC/E have never set out to investigate every reported accident. In 1998-99 the target was 6.1 per cent, in 1999-2000 it is 6.7 per cent and the figure is set to increase as a consequence of inspector recruitment. This programme includes every fatality and a substantial number of major injuries, selected by certain criteria; a summary of the criteria is given in the attached Annex.

  26.  The number of complaints to HSE has been rapidly increasing in recent years particularly from members of the public who are becoming more aware of risks through media coverage and perhaps HSE's efforts to raise awareness. In 1998-99 HSE investigated more complaints than ever before but as the number received was higher than expected, failed to achieve the target percentage (84 per cent). Numbers this year are likely to be even higher.

  27.  Investigations and associated enforcement activity take on average two and a half times as long as inspection and associated enforcement activity. If FOD were to do nothing but investigations (ie no preventive inspections at all) it would still only be possible within current resources to investigate 18-20 per cent of all reported major injury accidents.

PROSECUTION

  28.  Prosecutions are around 10 times more likely to follow from an investigation than an inspection (where the use of notices to remedy deficiencies is usually more appropriate). In 1998-99 HSE brought prosecutions for 1,797 offences in 1,058 separate cases, 10 per cent more than in 1997-98. The number is expected to increase again next year as more recently recruited inspectors are trained.

  29.  Prosecutions are brought in accordance with the Commission's published policy (see earlier reference) and the criteria laid down in the Crown Prosecution Service Code for Crown Prosecutors (similar criteria are applied in Scotland). Inspectors use their statutory powers to gather sufficient evidence to support a realistic prospect of securing a conviction in the courts, and ensure that prosecutions are in the public interest.

  30.  Inspectors receive legal proceedings training and may conduct their own cases in the Magistrates' Courts but not in the Crown Courts. In Scotland, only the Procurator Fiscal may prosecute HSE cases. In the majority of cases a guilty plea will be entered. Magistrates may impose a fine of up to £20,000 for a breach of the general duties of the 1974 Act, or refer the case to the Crown Court for sentencing where an unlimited fine is available. In certain limited instances, a custodial sentence may be imposed. HSE may also make representations for cases to be heard or sentencing to take place in the Crown Court, and Magistrates may also refer cases for trial. In 1998-99 the average penalty was £5,038; the highest was £1.2 million.

  31.  In 1998-99 83 per cent of offences prosecuted by HSE resulted in conviction. Numbers of defended cases are increasing, but are still in the minority. HSE has secured a conviction in 38 per cent of offences prosecuted where the defendant has pleaded not guilty. On average two prosecutions are initiated each year by operational inspectors in FOD. Only one every four years is defended. As legal procedures become more complex and demanding HSE is increasingly using solicitor agents and Counsel to conduct defended cases: prosecution arrangements generally are under review.

  32.  HSE cannot investigate or prosecute for manslaughter. A Protocol agreement between HSE, the Association of Chief Police Officers and the Crown Prosecution Service (CPS) published in 1998 covers liaison following work-related deaths. This has resulted in closer working between HSE inspectors, the police and the CPS, but until the new "Corporate Killing" offence is created, successful manslaughter prosecutions against companies seem likely to be few. Between April 1992 and 30 June 1999, 113 cases have been referred to CPS to consider possible manslaughter charges. CPS have decided to prosecute in 30 of these cases and have secured convictions in six. Two of the cases involved corporate manslaughter convictions. Nevertheless, HSE would like to see a much higher success rate for the considerable investment of resources in such cases.