How to handle a health and safety inspection

Published 01st Oct 2013 by bathamm
How to handle a health and safety inspection INSPECTIONWater, electrical equipment, sharp tools and chemicals all make a salon a potentially dangerous place to work. Of course, all respectable salons will have a safety at work policy in place to protect staff and clients from any risk, but should the worst happen, a salon owner will need to be prepared for a visit from a health and safety inspector, and the repercussions this could involve. Recent changes in the law mean that it is easier than ever to prosecute individuals and employers for breaches of health and safety legislation. The Health and Safety (Offences) Act 2008 has seen the severity of penalties increase in such a way that even relatively minor offences can now result in hefty fines or even prison sentences for individuals convicted of certain health and safety offences. More than ever there is now a fundamental need for all duty holders to both understand and be able to manage a health and safety investigation correctly. Powers of an Inspector during  site visits Routine visits by the Health and Safety Executive are becoming less common as there is now a more coherent focus on inspections of high-risk industries and the selective targeting of duty holders. However, post-incident, every duty holder should prepare themselves for a visit from the Health and Safety Executive. While some inspectors may warn duty holders of their proposed visit, this is not a legal requirement as the Health and Safety Executive has the power to carry out an inspection on a workplace whenever it sees fit as long as it is at a reasonable time (unless the inspector believes there is a dangerous situation in existence). It is worth noting that a workplace can include work premises and homes of employees who work from home. An attempt to disrupt or prevent an inspector conducting a visit can lead to a fine or a prison sentence, depending on the severity of the obstruction. Compulsory interview Somewhat surprisingly, the Health and Safety Executive has investigatory powers that are, in some respects, wider than those of the police. In particular, the Health and Safety Executive holds a power to compel individuals to answer questions that may assist their investigations. Any failure to answer the questions posed, without good reason, will be a criminal offence. The person giving the answers must also sign a declaration of truth for their answers. The power of ‘compulsory interview’ is a draconian one and therefore there are safeguards in place to protect the interviewee. The answers given cannot subsequently be used in court against the person giving those answers and the power of compulsory interview should not be used where the inspector believes that the interviewee has committed a criminal offence. Investigatory powers To assist inspectors in their general duties, often conducting post-incident investigations, the law provides them with a number of additional powers. These include:
  •  To force premises to be closed off or remain undisturbed.
  •  To require the production of and to inspect any items, books or documents that they see fit. If required, the inspector is entitled to take copies of the relevant entries.
  •  To take measurements and photographs of the premises.
  • To dismantle anything they feel might pose health and safety risks.
Enforcement Notices Where an inspector believes that they have discovered a state of affairs that requires remediation, they have powers to issue enforcement notices. These come in two types – improvement notices and prohibition notices. Improvement notices are written directions issued by an inspector requiring a company to remedy an alleged breach of health and safety law. In order for the improvement notice to be issued the inspector must be of the view that there is, or is likely to be, a breach of the law by the duty holder if the situation is not remedied. The Improvement Notice will specify the actions to be taken and will give a timescale for completion. As a failure to comply with an improvement notice is a criminal offence, duty holders should always ensure that they request a realistic timeframe for completion of any works with the inspector. Accepting an improvement notice should be carefully considered, as the fact of acceptance is often citied in later court proceedings as evidence of an earlier acceptance of liability for breach of health and safety legislation. Prohibition notices prohibit any activity the inspector believes involves or will involve a risk of imminent and serious injury of harm to the health of any person. An inspector can serve a prohibition notice if he or she is of the opinion that there is, or is likely to be, a risk of serious personal injury. There does not need to be any breach of the law for a prohibition notice to be served. Should a duty holder wish to appeal an enforcement notice, it is possible to do so through the Employment Tribunal. Fee for Intervention Since October 2012, the Health and Safety Executive has started to charge for its time incurred in visiting, assessing and corresponding with duty holders in circumstances where it believes that the duty holder has committed a material breach of health and safety legislation. Where a material breach is identified, the inspector will effectively invoice the duty holder for all of their time involved in investigating, advising and liaising with the duty holder to ensure that the material breach is remedied. As the inspector’s costs can only be recovered where there is a material breach, duty holders should think carefully before opening their cheque book as the payment of a fee for intervention notice is no guarantee that further enforcement action, such as prosecution, will not follow for the same material breach. The HSE has a section dedicated to hairdressing . Stuart Ponting is a legal director at international law firm DLA Piper UK LLP and handles some of the UK’s largest corporate crime investigations. Claire Pincombe is an associate at DLA Piper UK LLP specialising in defending companies in regulatory prosecutions.
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bathamm

Published 01st Oct 2013

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