An Inspector Calls

It was reported earlier this year that calls to the HSA /HSE dramatically increased – in particular employee concerns about workplace safety around Covid-19.     What is the role of a Health Inspector and what are they looking for when investigating an incident?  This article outlines what factors inspectors consider when they conduct an inspection following a complaint or incident report and will help Employers when considering how to implement health and safety policies especially in light of the current Covid 19 circumstances. 

General Enforcement Principles

HSENI has compiled Enforcement Guidelines which set out the general principles and approach which all health and safety enforcing authority staff (“Inspectors”) are expected to follow when taking enforcement decisions. Those guidelines are the basis for this article.

Sometimes the law will specifically spell out what must be done in detail. But as HSENI’s guidelines state:

“However, much of modern health and safety law is goal setting – setting out what must be achieved, but not how it must be done.”

Advice on achieving these goals can often be found in the Approved Codes of Practice (“ACoPs”). If you do not follow the ACoPs and are prosecuted, you will have to show that you complied with the law in another way.

HSENI exercises discretion in making decisions on enforcement action. Enforcement actions include:

• offering duty holders information and advice, both face to face and in writing;
• serving Improvement and Prohibition notices;
• issuing formal cautions;
• initiating prosecutions.

HSENI Inspectors are required to make enforcement decisions in accordance with 5 principles of enforcement which are:

1. Proportionality – this means that enforcement action should be proportionate to any risks to health and safety, or to the seriousness of any breach, which includes any actual or potential harm arising from a breach of the law i.e. Inspectors should take particular account of how far the business has fallen short of what the law requires and the extent of the risks to people arising from the breach.
2. Targeting – this means targeting action primarily on those whose activities give riseto the most serious risks or where the hazards are least well controlled and that action is focused on the duty holders who are responsible for the risk and who are best placed to control it. The duty holder’s management competence is important, because a relatively low hazard site poorly managed can entail greater risk to workers or the public than a higher hazard site where proper and adequate risk control measures are in place.
3. Consistency - Consistency of approach does not mean uniformity. It means taking a similar approach in similar circumstances to achieve similar ends.
4. Transparency - means distinguishing between statutory requirements and advice about what is desirable but not compulsory.
5. Accountability – means having policies and standards against which they can be judged and an effective and easily accessible mechanism for dealing with comments and handling complaints. Enforcement actions can also be legally appealed and/or challenged.

Investigation of an incident

Investigations are carried out to determine:

a)    the causes of the incident;

b)    whether action has been taken or needs to be taken to prevent a recurrence and to secure compliance with the law;

c)    lessons to be learnt and to influence the law and guidance; and

d)    what response is appropriate to a breach of the law.

In selecting which incidents to investigate, HSENI will take into account the following factors:

1. the severity and scale of potential or actual harm;
2. the seriousness of any potential breach of the law;
3. knowledge of the duty holder’s past health and safety performance;
4. the enforcement priorities;
5. the practicality of achieving results; and
6. the wider relevance of the event, including serious public concern

Once HSENI recommends that a case be prosecuted, it is referred to the Director of Public Prosecutions (DPP)

Test For Prosecution

The DPP will ultimately decide whether a case is actually prosecuted through the criminal courts. The DPP must be satisfied that the evidence presented at court is sufficient to provide a reasonable prospect of conviction and that prosecution is required in the public interest. There are a number of factors which will be taken into account in making this decision such as where:

a)    death was a result of a breach of the legislation;

b)    the gravity of an alleged offence, taken together with the seriousness of any actual or potential harm, or the general record and approach of the offender warrants it;

c)    there has been reckless disregard of health and safety requirements;

d)    there have been repeated breaches which give rise to significant risk, or persistent and significant poor compliance;

e)    work has been carried out in the absence of or in serious noncompliance with an appropriate licence or safety case;

f)     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;

g)    there has been a failure to comply with an Improvement or Prohibition notice; or

h)    there has been a repetition of a breach that was subject to a formal caution;

i)     false information has been supplied wilfully, or there has been an intent to deceive, in relation to a matter which gives rise to significant risk;

j)     Inspectors have been intentionally obstructed in the lawful course of their duties.

Prosecution of Individuals

While those who are sole traders or in partnerships will be prosecuted personally, company directors are not immune to prosecution.

Where an inspection or investigation reveals that the offence was committed with a director’s consent, knowledge or connivance, or, to have been attributable to lack of reasonable diligence on their part depending upon the particular circumstances of the case and the nature of the liability which arises, then a Director can be prosecuted individually.

Conclusion

Compliance with health and safety obligations is a legal requirement and an understanding of how HSENI seeks to ensure compliance and exercise enforcement will help in the implementation of health and safety policies, especially during these Covid19 times.