Will a notice from the HSE be evidence of bad character?

Background

As the national regulator for workplace health and safety, the Health and Safety Executive (HSE) has statutory powers which allow them to enforce health and safety regulations in order to prevent work related deaths, injury and ill health. In fulfilling their role, the HSE can and will often send inspectors to a business or site in order to ensure that all regulations are being adhered to correctly and where concerns are raised or issues identified, they have the power to take action which can include issuing appropriate notices

What are the most common types of notices issued by the HSE?

Notice of Contravention

A notice of contravention is a notice served on you by the HSE to explain that they suspect or have seen something that is against Health and Safety legislation. The HSE will generally ask you to explain what you are going to do and to provide evidence as soon as possible which explains how you will put things right.

Enforcement Notices

If the breaches are so serious as to pose a significant risk to workers or the general public then the HSE may take a more strict approach and issue an enforcement notice. An enforcement notice is a way for HSE to ensure that any breaches of health and safety are remedied quickly as the notice is effective immediately. There are two types of enforcement notices:

1. Improvement notices
2. Prohibition notices

Improvement Notices

An improvement notice can be given when an inspector is of the opinion that a person is contravening one or more of the relevant statutory provisions or if circumstances mean it is likely that there will be a breach in the future. These notices require the recipient to take positive action to remedy a health and safety deficiency perceived by the inspector. An improvement notice cannot be used to require a duty holder to do something which has no attainable end within the compliance period.  However, a notice can require that by a given date, a suitable system is put into place to ensure that the improvement is undertaken.

Prohibition Notice

A prohibition notice may be served if an inspector is of the opinion that an activity carried on (or likely to be carried on) by or under the control of that person involves (or will involve) a risk of serious personal injury. These notices require the recipient to stop an activity. If stopping the activity immediately would introduce additional risks then a deferred prohibition notice may be provided. If you are served with an enforcement notice, then your details will be available on a public register for five years.

When can enforcement notices amount to bad character?

In the case of HSE v Evergreen Construction UK Limited [2023] the Court of Appeal considered this question for the first time. The Court ruled that prohibition notices and notices of contravention could amount to evidence of bad character where the underlying facts that led to the notices being issued in the first place demonstrates “reprehensible conduct” as defined within s 112 CJA 2003. In this case, the court went on to consider the issue of propensity and concluded that evidence of prohibition notices and notices of contravention issued in respect of two separate incidents was capable of establishing a propensity to offend. Every case will need to be carefully considered on its own facts and the case above does not mean that HSE notices will amount to bad character in every case. It does, however serve as a reminder as to why such notices must be taken seriously and why legal advice and assistance at an early stage is so important. The team at Olliers have considerable experience in assisting businesses and individuals who find themselves subject to investigation or prosecution by the HSE. We take a pro-active approach to cases and will engage with the investigators, lawyers and other professionals on your behalf to alleviate the pressure and also ensure the best possible outcome for you and your business. We recognise the potentially far-reaching consequences such matters can have on a business and those involved, so if you require advice and assistance please get in touch  today.