Health and Safety Enforcement Policy Statement

Aim of the council in health and safety enforcement

The principal aim of the Council in this role is to enhance the health and safety of employees and others, including members of the public, who may be exposed to risks from work activities within its area of responsibility, by educating, promoting and where necessary, by enforcing the relevant legislation.

Aim of the policy

This policy sets out the principles which will enable the Council’s Environmental Health Department and its health and safety enforcement officers (“officers”) to provide an effective and fair service, and to ensure consistent and open enforcement.

It is written for the council’s officers and any business representatives who enquire about our policy and procedures. It applies to all dealings, whether formal or informal, between businesses and officers.

Arrangements for effective enforcements

Fundamentally the council will:

  1. perform its statutory duty to enforce the Health and Safety at Work (NI) Order (the “order”) and other relevant regulations within its field of responsibility.
  2. make adequate arrangements to enable it to perform this role effectively by;
  • ensuring that officers appointed by the council as individuals who have the authority to take enforcement action under the Order, are competent, making reference to an authorisation policy which links the use of their powers of enforcement to their individual competencies.
  • working to a prioritised planned inspection programme in which the frequency of inspection is determined by risk, and where account is taken of national guidelines on the subject for responding to reports of accidents, disease and dangerous occurrences.
  • operating a system for responding to complaints made against businesses in connection with unsafe premises and practices or occupational ill health.
  • operating a system for responding to hazard warnings which affect businesses and residents within its district, and
  • adopting the greater use of informal methods for improving health and safety standards, in line with government policy, which include the provision of advisory services to assist and inform businesses and individuals to understand their legal obligations, and to offer relevant information, advice and support by;
    • confirming the availability of relevant formal guidance publications;
    • producing and supplying free advisory leaflets and other literature,
    • supplying specific activity or premises related advice,
    • providing, or assisting in the provision of, relevant health and safety seminars, conferences and training courses.

The council’s enforcement remit is defined in the current Health and Safety (Enforcing Authority) Regulations and includes mostly non-industrial premises. A complete list of business types enforced by the council is provided in annex A.

Principles of enforcement

Health and safety law will be enforced in accordance with the principles of:

  • proportionality in applying the law and securing compliance,
  • consistency of approach,
  • targeting of enforcement action, and
  • transparency about how the enforcer operates and what those regulated may expect.

Proportionality

Proportionality means relating enforcement action to the risks to persons and the costs to business.

In some circumstances the risk of serious personal injury may be so great that it cannot be permitted, irrespective of the economic consequence, and hence formal action may be unavoidable. At the other extreme, some risks may be so inconsequential that there will be no real benefit from reducing them further. Therefore when officers are deciding on the most appropriate remedial measures they will take account of:

  • the degree of any risks posed (such as the likelihood and severity of injuries occurring)
  • the seriousness of any breach of the law.
  • the burden which would be placed on the business in taking the action, compared with the benefit of the risk reduction
  • relevant good practice as detailed in approved codes of practice, codes of practice and published guidance
  • how public interest would best be served
  • enforcement advice and direction given by the Health and Safety Commission (HSC) the Health and Safety Executive (HSE) and the Chartered Institute of Environmental Health (CIEH).

Consistency

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

Businesses managing similar risks expect consistency from officers, in the advice tendered, the use of powers, on enforcement action and in the response to reportable accidents.

The Council recognises that in practice consistency is not a simple matter. Officers are faced with many variables, such as the degree of risk, the attitude and actions of employers and the history of accidents. Each of these may vary between businesses, even those in the same business sector. Decisions on enforcement action are a matter of sound professional judgement and consistency is ensured by appropriate training, supervision and reference to documented procedural guidance.

When enforcement action is being considered against a national company which has formed a partnership with a Lead Authority, in respect of a matter which has company wide significance, officers will consult with that Lead Authority before instigating legal proceedings.


A Lead Authority Partnership between a multiple outlet commercial company and one District Council. The District Council will have carried out a review of the company’s safety management systems and will liaise with other Local Authorities.

Transparency

Transparency means enabling employers and employees to understand what is expected of them and what they should expect from the council’s officers.

In line with government policy on deregulation and good enforcement practice, officers will explain the following to any person upon whom enforcement action is contemplated;

  • the risks to which persons are exposed.
  • the suggested remedial action, distinguishing between what is a statutory requirement and what is good practice
  • the intention to take formal enforcement action and time period allowed
  • an explanation regarding any immediate action
  • the rights of complaint available
  • the right of appeal against formal enforcement action to an industrial tribunal

Accordingly an explanatory leaflet will be issued to employers and employees during a visit or when enforcement action is contemplated.

Targeting

Targeting means making sure that inspection is directed primarily towards businesses whose activities give rise to the most serious ‘risks’ or where the hazards are least well controlled. It also ensures that action is focused on lawbreakers and on those directly responsible for the risk and who are best placed to control it, for example employers, employees, or the owner or occupier of the premises.

As stated previously, the council has adopted systems for prioritising inspection visits based on national guidelines which will permit resources to be targeted toward the higher risk premises.

Enforcement action

Officers will determine what, if any, enforcement action is appropriate, in accordance with the aforementioned principles, from the following informal and formal options:

  • oral advice
  • advisory letter where advice is being confirmed or remedial action requested informally
  • enforcement letter - where remedial action is requested within a defined time period, but where formal action is not considered necessary at that stage.
  • enforcement notice

(a) an improvement notice may be served in any or all of the following cases:

  • where there is a serious contravention which can be improved
  • where an enforcement letter or other previous advice has not been complied with
  • where the previous record of the company or the attitude of the employer would indicate that informal methods are not likely to be effective.

(b) a prohibition notice may be served where there is a risk of serious personal injury. Where the risk is imminent the prohibition notice can have immediate effect or in other cases a prohibition notice can specify a date after which the activity in question must cease.

  • seizure or the rendering harmless of articles or substances which present imminent danger of serious personal injury
  • formal caution where a business admits to an offence and extenuating circumstances exist which make prosecution inappropriate.
  • Prosecution.

Prosecution

Where circumstances warrant it, prosecution without prior warning may be appropriate. The decision to prosecute will take account of the criteria set down in the Code for Crown Prosecutors (Crown Prosecution Service), which relate to the weight of evidence and whether a prosecution would be in the public interest.

It is likely that prosecution will be warranted where, for example:

  • there is serious and blatant disregard for the law which exposes persons to a risk of serious personal injury
  • there is failure to comply with an improvement or prohibition notice
  • an accident has resulted from a serious contravention of the law which was foreseeable
  • there are grounds for believing that the offence is likely to be continued or repeated
  • the company has repeatedly breached legal requirements and it appears that management is not willing to deal adequately with these.
  • there is a contravention and the company has received previous warnings about similar offences
  • where a particular type of offence is prevalent in an activity or an area.

Manslaughter - where there has been a work-related death, officers will liaise with the Police Service of Northern Ireland (PSNI) and if necessary the coroner and Director of Public Prosecutions (DPP) to establish whether or not the PSNI is considering pursuing a case of manslaughter. It is however recognised that a manslaughter charge is only likely to be considered where the death appears to have resulted from reckless disregard for health and safety.

Where evidence suggesting manslaughter is found, it will be passed on to the PSNI, or where appropriate the DPP. However as the consideration of a manslaughter case can take time, enforcement officers will continue to prepare their own case and may still consider prosecution should the manslaughter charge not be pursued.

Prosecution on indictment: A recommendation for prosecution on indictment will only be made after full consultation with the Legal Services Department, in cases where:

  • the gravity of the offence would warrant it
  • there was blatant disregard for the law
  • the powers of the summary court to punish the offence are inadequate
  • the offender has a previous record of health and safety convictions
  • the offender has not responded to previous warnings
  • where there is great public alarm.

Public interest factors that can affect the decision to prosecute usually depend on the seriousness of the offence, the circumstances of the offender and whether through the conviction of offenders, others may be deterred from similar failures to comply with the law.

Complaints procedure

In the event that the “customer” is dissatisfied with the service provided, there are a number of forms of recourse available as outlined below, which officers will ensure the customer is made aware of. The exact procedure followed in any particular case will depend not only upon the nature of the grievance itself but also the course of action the complainant wishes to pursue.

(a) Complaints related to enforcement action decisions

  • Officers will advise persons whom they have required to take any action, of their right to make representation to the officer’s manager and, if not satisfied, to the Director of Environmental Health and ultimately the Chief Executive.
  • Officers will, when serving improvement or prohibition notices, provide with those notices appeal forms to be used should the recipient wish to lodge a formal appeal against these to an Industrial Tribunal. Information outlining the appeals process and the possible grounds for appeal will also be provided.
  • Where there is no right of appeal to an industrial tribunal or a court, a person who is not satisfied that council officers have followed the procedures laid down in this policy when making enforcement decisions, can, after exhausting the mechanism outlined in (i), ask the Commissioner for Complaints (The Ombudsman) to investigate their complaint.

(b) Complaints relating to issues other than enforcement action decisions.

The Council’s formal complaints procedure will be used to investigate those complaints which relate to dissatisfaction with the service, for example those relating to:-

  • conduct of authorised officers
  • an available service which was not provided
  • alleged discrimination
  • the quality of the service, for example, failure to respond quickly enough to requests for service.

Public Access to information

This policy will be made freely available to employers via the publication and distribution of an advisory leaflet. This document will also be open to the public.

Officers will adhere to the restrictions placed upon them by the Order in relation to the release of any information to a third party, obtained by them in the course of their duties. This information can only be released in the following circumstances:

  • to enable an inspector to carry out a full investigation
  • for the purposes of legal proceedings
  • with the consent of the person who furnished the information or has responsibility for the business.

Certain factual information can also be given to employees and their representatives and to any person likely to be party to civil proceedings arising out of an accident or occurrence.

In accordance with the Environment and Safety Information Order, the council will keep and make available, a public register of those improvement or prohibition notices which do not solely relate to the protection of employees, but which have wider implications for the general public.

Enforcement Strategy

This policy forms part of an enforcement strategy for health and safety which includes other policies, advisory literature and complementary procedural guidance for enforcement officers.

Review

This policy will be reviewed as necessary to ensure that it satisfies legal requirements and our customers’ expectations of the service, and as a minimum every two years.

Comments

The Council welcomes comments on this policy and how we can improve our services. Comments can be made in the following ways:

In person or in writing to:

Director of Environmental Health,
O’Hagan House, Monaghan Row, Newry BT35 8DJ


By telephone to 028 30313100

Or via our website: www.newryandmourne.gov.uk

Annex A

Main activities which determine whether district councils will be Enforcing Authorities
(Taken from the Health and Safety Enforcing Authority Regulations (NI) 1993)

  1. The sale or storage of goods for retail or wholesale distribution except:
    1. where it is part of the business of a transport undertaking;
    2. at container depots where the main activity is the storage of goods in the course of transit to or from dock premises, an airport or a railway;
    3. where the main activity is the sale or storage for wholesale distribution of any dangerous substance;
    4. where the main activity is the sale or storage of water or sewage or their by-products or natural or town gas; and for the purposes of this paragraph where the main activity carried on in premises is the sale and fitting of motor car tyres, exhausts, windscreens or sunroofs the main activity shall be deemed to be the sale of goods.
  2. The display or demonstration of goods at an exhibition, excluding those activities at an agricultural show, for the purposes of offer or advertisement for sale.
  3. Office activities.
  4. Catering services.
  5. The provision of permanent or temporary residential accommodation including the provision of a site for caravans or campers.
  6. Consumer services provided in a shop except dry cleaning or radio and television repairs, and in this paragraph “consumer services” means services of a type ordinarily supplied to persons who receive them otherwise than in the course of a trade, business or other undertaking carried on by them (whether for profit or not).
  7. Cleaning (wet or dry) in coin operated units in launderettes and similar premises.
  8. The use of a bath, sauna or solarium, massaging, hair transplanting, skin piercing, manicuring or other cosmetic services and therapeutic treatments, except where they are carried out under the supervision or control of a registered medical practitioner, a dentist registered under the Dentists Act 1984(a), a physiotherapist, an osteopath or a chiropractor.
  9. The practice or presentation of the arts, sports, games, entertainment or other cultural or recreational activities except where carried on in a museum, art gallery or theatre or where the main activity is the exhibition of a cave to the public.
  10. The hiring out of pleasure craft for use on inland waters.
  11. The care, treatment, accommodation or exhibition of animals, birds or other creatures, except where the main activity is horse breeding or horse training at a stable, or is an agricultural activity or veterinary surgery.
  12. The activities of an undertaker, except where the main activity is embalming or the making of coffins.
  13. Church worship or religious meetings.


Summary

In the main this includes:

Offices
Shops and wholesale premises
Restaurants
Premises providing entertainment
Residential homes
Exhibitions
Consumer services
Cosmetic services
Coin operated launderettes
Undertakers
Church premises
Boarding Kennels and pet treatment
Boat hire.