We look at one of the tools available to Great Britain's safety regulator in its attempts to make sure organisations operate safely: Prohibition Notices.

As the UK’s national regulator and enforcement agency for health and safety in the workplace, the Health and Safety Executive (HSE) has a number of approaches it can take to make sure organisations abide by health and safety law. The most obvious – and something we look at in depth with IOSH Online’s regular prosecution stories – is a full HSE prosecution. As an agency with prosecuting powers, The HSE is able to take an individual or an organisation to court if it feels there is sufficient evidence of a serious breach of health and safety legislation. But there are also two other processes that HSE can use to ensure dutyholders fulfil their responsibilities.

Improvement and Prohibition

The first is to serve an Improvement Notice. Improvement Notices represent the most common form of HSE enforcement action and are issued when an HSE inspector identifies a contravention of health and safety law that requires correction within a specified timeframe. 

The Improvement Notice will state what the organisation needs to do to rectify the issue and it will provide a reasonable deadline for compliance, typically ranging from a few weeks to several months, depending on the complexity of the improvements that are necessary.

The second, and more serious option for HSE inspectors, is to serve a Prohibition Notices. These are used when there is an imminent risk of serious personal injury – such as in the aftermath of an accident – and, unlike Improvement Notices, Prohibition Notices take immediate effect. 

In many prosecution cases that we cover, the investigating HSE inspector has identified that the cause of the initial accident still poses an imminent danger and, by using a Prohibition Notice, the inspector has the authority to stop work immediately until the specified safety issue or issues are resolved. 

The HSE publishes all served Prohibition Notices and Improvement Notices – ‘Enforcement Notices’ – on a public register - https://resources.hse.gov.uk/notices/. To account for appeals processes and internal quality assurance, enforcement notices are published five weeks after they are served and remain on the database for a period of five years.

Prohibition in action

IOSH magazine recently looked at the case of Bow Tie Construction Limited, which was prosecuted for breaching section 2(1) of the Health and Safety at Work Act, after a worker fell 1.65 metres from the top of a stepladder to the ground below, suffering multiple serious injuries in the process.

This occurred despite the fact that Bow Tie Construction had been served a Prohibition Notice for unsafe work at height just a month before the incident. So what happens when an organisation ignores a Prohibition Notice?

'Ignoring a Prohibition Notice – or failing to act on it effectively – is treated very seriously by HSE,' said HSE Inspector Emma Bitz, who was the investigator in the Bow Tie Construction case. 

'Within HSE’s Enforcement Management Model (EMM), this behaviour is considered a key relevant dutyholder factor when deciding on the appropriate enforcement response.

'The EMM requires inspectors to take account of factors such as: a history of non-compliance; whether previous enforcement action or advice has been ignored; and evidence of a systemic failure to manage risk. These factors help determine both the level of culpability and the type of enforcement action required.

'In this case, the risks associated with work at height had already been clearly identified – both through the Prohibition Notice and by the company’s own health and safety consultant. The expectation is that dutyholders will act on that information and take meaningful steps to control the risk. When similar failings persist, it indicates that those risks were understood but not effectively managed.'

Prohibition implications

From the HSE’s EMM perspective, the issuing of a Prohibition Notice has several important implications:

1. Increased culpability. Failure to act on a Prohibition Notice demonstrates that the dutyholder had actual knowledge of the risk, and continued unsafe practices point to either disregard or inadequate management control.
2. Stronger enforcement response. The presence of adverse dutyholder factors shifts the response away from informal action and towards formal enforcement, including prosecution, as there is less confidence that the dutyholder will comply voluntarily.
3. Significant evidential weight. A Prohibition Notice clearly evidences that the risks were identified, explained and required to be addressed. Continued failings after that point weaken any suggestion that the risks were not understood.

'In practical terms, cases like the Bow Tie Construction incident move firmly into the category where enforcement must be both proportionate and robust, reflecting not just the risk itself, but how it has been managed,' Emma said.

'More broadly, ignoring a Prohibition Notice is often indicative of deeper issues within an organisation – particularly around leadership, supervision and risk management systems. It will also be viewed by the courts as an aggravating feature on sentence, as the risks were not only foreseeable, but had already been formally brought to the dutyholder’s attention.'

So, being served with a Prohibition Notice isn’t just a significant event in and of itself for your organisation – should your organisation later be found to have breached a related area of health and safety legislation, you can expect the full weight of the law to be brought to bear against you.

Source: IOSH Magazine

Comment: "No comment."