Interpretation of the HSE Enforcement Policy As It Affects Rescue When Working at Height & How to Discharge Your Legal Responsibilities It’s important before we look at specific legislation for rescue, that we consider what the HSE is trying to achieve and how it goes about doing this. The way rescue legislation impacts your business is relative to the way the HSE enforces legislation and what the HSE is trying to achieve with its enforcement policy.
HSE ENFORCEMENT POLICY
The appropriate use of enforcement powers, including prosecution, is important, both to secure compliance with the law, and to ensure that those who have duties under it may be held to account for failures to safeguard health, safety and welfare.
We can see here that the HSE are using their powers of enforcement including their power to prosecute to achieve two primary aims:
- To make you comply with the law
- To hold those who have responsibility and duty of care accountable
- Policy enforcement
The ultimate purpose of the enforcing authorities is to ensure that duty holders manage and control risks effectively, thus preventing harm. The purpose of enforcement is to:
- Ensure that duty holders take action to deal immediately with serious risks
- Promote and achieve sustained compliance with the law
- Ensure that duty holders who breach health and safety requirements, and directors or managers who fail in their responsibilities, may be held to account, which may include bringing alleged offenders before the courts in England and Wales, or recommending prosecution in Scotland, in the circumstances set out later in this policy.
In practice, applying the principle of proportionality means that enforcing authorities should take particular account of 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. Some health and safety duties are specific and absolute. Others require action so far as is reasonably practicable. Enforcing authorities should apply the principle of proportionality in relation to both kinds of duty.
As we go through the Rescue Regulations it is important to consider Proportionality by considering the extent of the risks and how far short of the law you may be presently operating. In doing this we will consider regulations which are Specific & Absolute (you must do exactly as legislation says) and those which require action as far is Reasonable & Practical.
Deciding what is reasonably practicable to control risks involves the exercise of judgment; find the best and most reasonable you can do to comply with this regulation given your current circumstances and resources. An example of Specific & Absolute would be The Work at Height Regulations 2005 Regulation 4 (1) & (2) which state:
“Every employer shall ensure that all work at height includes planning for emergencies and rescue.”
You have to comply with this regulation exactly – there is no room for flexibility. An example of Reasonable & Practical would be The Work at Height Regulations 2005 Regulation Schedule 5 part 1 (1) (b) which states:
“The user and a sufficient number of available persons have received competent training specific to the operations envisaged, including rescue procedures.”
In this instance the HSE are expecting you to use reasonable judgment in two areas:
- Sufficient number of trained operatives
- Competent training (specific to your operations and the provision for rescue)
It would be very beneficial for management and those responsible for employees working at height to go through the WAH 2005 regulations and consider whether they are Specific & Absolute or Reasonable & Practical.
GROUNDS FOR PROSECUTION
Enforcing authorities should normally prosecute, or recommend prosecution, where, following an investigation or other regulatory contact, one or more of the following circumstances apply:
- Death was a result of a breach of the legislation.
- The gravity of an alleged offence, taken together with the seriousness of any actual or potential harm, or the general record and approach he offender warrants it.
- There has been reckless disregard of health and safety requirements.
- There have been repeated breaches which give rise to significant risk, or persistent and significant poor compliance.
- Work has been carried out without or in serious non-compliance with an appropriate license or
A duty holder’s standard of managing health and safety is found to be far below what is required by health and safety law and to be giving rise to significant risk.
There has been a failure to comply with an improvement or prohibition notice; or there has been a repetition of a breach that was subject to a formal caution.
False information has been supplied willfully, or there has been an intent to deceive, in relation to a matter which gives rise to significant risk.
Inspectors have been intentionally obstructed in the lawful course of their duties.
Enforcing authorities should identify and prosecute or recommend prosecution of individuals if they consider that a prosecution is warranted. In particular, they should consider the management chain and the role played by individual directors and managers, and should take action against them where the inspection or investigation reveals that the offense was committed with their consent or connivance or to have been attributable to neglect on their part. (Connivance = Knowledge of, and active or passive consent to wrongdoing) Where appropriate, enforcing authorities should seek disqualification of directors under the Company Directors Disqualification Act 1986. It’s clear that the HSE looks at the role played by individual directors and managers whether the offence was with your consent or simply passive neglect.
ACTION BY THE COURTS
Health and safety law gives the courts considerable scope to punish offenders and to deter others, including imprisonment for some offenses. Unlimited fines may be imposed by higher courts. HSE will continue to seek to raise the courts’ awareness of the gravity of health and safety offenses and of the full extent of their sentencing powers, while recognizing that it is for the courts to decide whether or not someone is guilty and what penalty if any to impose on conviction.
DEATH AT WORK
Where there has been a breach of the law leading to a work-related death, enforcing authorities need to consider whether the circumstances of the case might justify a charge of manslaughter (culpable homicide in Scotland). The police are responsible for deciding whether to pursue a manslaughter investigation and whether to refer a case to the CPS to consider possible manslaughter charges. The enforcing authorities are responsible for investigating possible health and safety offenses. If in the course of their health and safety investigation, the enforcing authorities find evidence suggesting manslaughter, they should pass it on to the police. If the police or the CPS decides not to pursue a manslaughter case, the enforcing authorities will normally bring a health and safety prosecution in accordance with this policy. In Scotland, responsibility for investigating sudden or suspicious deaths rests with the Procurator Fiscal. Unless a prosecution takes place in the same circumstances, the Procurator Fiscal is required to hold a Fatal Accident Inquiry into the circumstances of a death resulting from a work related accident.
PENALTIES FOR HEALTH AND SAFETY OFFENCES
The Health and Safety at Work etc Act 1974, section 33 sets out the offences and maximum penalties under health and safety legislation. Failing to comply with an improvement or prohibition notice, or a court remedy order:
- Lower court maximum £20 000 and/or 6 months’ imprisonment
- Higher court maximum Unlimited fine and/or 2 years’ imprisonment
Breach of sections 2-6 of the HSW Act, which sets out the general duties of employers, self-employed persons, manufacturers and suppliers to safeguard workers and members of the public who may be affected by work activities:
- Lower court maximum £20 000
- Higher court maximum Unlimited fine
Other breaches of the HSW Ac, which include all health and safety regulations. These impose both general and more specific requirements, such as risk assessment or to the provition of suitable personal protective equipment:
- Lower court maximum £5000
- Higher court maximum Unlimited fine
We have now covered how rescue legislation impacts your business and how the HSE plans to enforce to enforce legislation and by now you should have an idea of what’s required to discharge your legal responsibilities.