Receiving an HSE prohibition notice can be daunting, especially given the potentially serious consequences that can arise from this for a business. Below we look at what prohibition notices are and the circumstances in which these will be issued by the HSE. We also look at the impact of being served a prohibition notice and what to do if this happens.
What is a prohibition notice?
The Health and Safety Executive (HSE) is a regulatory body whose role is to prevent death, injury and ill health in the workplace through the promotion, regulation and enforcement of effective health and safety practices. As such, the HSE has the power to issue prohibition notices in circumstances where any activity carried out in connection with a business involves a risk of serious personal injury. This includes a risk to staff and/or to the public.
A prohibition notice requires the recipient to cease the activity giving rise to the risk identified, usually with immediate effect, until remedial action has been taken. This means that the activity in question must not be resumed unless action has been taken to remove or adequately control the risk, and any breaches of health and safety law have been rectified. A notice can be served on any person taking part in, or in control of, any occupational activity or piece of workplace equipment causing an imminent threat of injury or death.
A prohibition notice can be issued in response to dangers identified during a random or routine spot check, or following a reactive site inspection carried out because of a reported incident or complaint about a potential health and safety breach. The HSE will proactively inspect those businesses that are known to be high risk, for example, in the construction industry. However, they will also visit businesses and individuals if they have been given information that people may be at risk of serious injury, regardless of the business sector.
Essentially, if an HSE inspector sees a need to prevent or stop unsafe practices, and serious breaches of health and safety, a prohibition notice can be issued against any business.
What does a prohibition notice contain?
The statutory provisions governing prohibition notices can be found under sections 22 and 23 of the Health and Safety at Work etc Act 1974 (HSWA). Under section 22 of the HSWA, a prohibition notice should set out the matters which, in the opinion of the HSE inspector, give rise to the risk of injury. It should also set out any relevant contraventions of the law. The notice will then usually go on to direct that the dangerous activities identified by the officer shall not be carried on by, or under the control of, the person on whom the notice is served, unless the matters and contraventions contained in it have been remedied.
There may also be a schedule attached to the prohibition notice, outlining the measures that can be taken by the recipient of that notice to remedy the matters or contraventions contained within it. The notice will then be signed and dated by the issuing HSE officer.
In many cases, given the risk of serious injury, the prohibition notice will take immediate effect. However, in some instances, the notice will be deferred. This means that the activity must cease at the end of the period specified in the notice, unless the matters and any contraventions of the law as identified by the HSE officer have since been remedied.
When will a prohibition notice be issued?
HSE officers have wide ranging powers vested in them by the HSWA, from carrying out site inspections and giving verbal or written advice on compliance in the case of relatively minor hazards, to prosecution for serious health and safety offences. Prohibition notices are just one of a range of enforcement tools at HSE’s disposal to help prevent dangers in the workplace and ensure compliance with the law.
However, prohibition notices are typically reserved for serious matters relating to health and safety in the workplace, where there is a very real and immediate risk of injury to workers or members of the public. If a business is issued with a prohibition notice, this is therefore a very clear indication that it has failed to comply with its statutory duty to ensure the health, safety and welfare of its staff, as well as anyone else affected by any risks arising out of, or in connection with, its activities. In other words, the employer will have failed in its safeguarding duties and remedial action will need to be taken immediately.
Common scenarios giving rise to a risk of serious injury that are likely to result in prohibition notices being issued can include a wide range of unsafe working practices, for example, to stop the use of an unguarded power press or defective scaffold. This might be because the employer has failed to identify the risk in question or has neglected to manage that risk effectively. It matters not that the employer was unaware of the risk or did not act intentionally in putting people in danger. If the business activities give rise to a risk of serious injury, then steps must be taken to make the workplace safe.
HSE officers also have the power to serve an improvement notice, either instead of, or in addition to, a prohibition notice. An improvement notice can be issued where an HSE inspector is of the opinion that the recipient is currently contravening health and safety law, or has previously contravened the law and it is likely that the alleged contravention will continue or recur. This will usually require remedial action to be taken within a specified period of time, but will be no less than 21 days from the date the notice is issued, and can be used to address any wider failings that led to a dangerous situation. This could include poor maintenance and testing procedures, or inadequate supervision and training etc.
What is the impact of getting a prohibition notice?
Aside from the potentially serious consequences of a dangerous working environment for staff and anyone else affected by the activities of the business, a significant breach in health and safety legislation is a matter of criminal law. Criminal offences under the HSWA can be committed by individuals, as well as by corporate bodies, such as limited companies.
Under section 33(1)(g) of the HSWA, it is also an offence for a person to contravene any requirement imposed by a prohibition notice, where a notice of prosecution will normally follow any failure to comply. If tried summarily, this will be punishable on conviction with an unlimited fine and/or 12 months imprisonment. On indictment, the maximum penalty is an unlimited fine and/or 2 years imprisonment. Any fine will be in addition to court costs that the accused may have to pay as a result of being prosecuted, together with the costs incurred by the HSE officer in investigating the matter and taking enforcement action.
Even where prosecution for non-compliance does not ensue, service of a prohibition notice alone can still have serious consequences for a business, including:
- Payment of enforcement costs: the HSE has the power to recover its own costs in identifying what is wrong and helping a business to put things right where that business is found to be in material breach of health and safety law, even without prosecution;
- The costs associated with remedial action: very often, to take the appropriate corrective measures, this will involve time and expense, such as buying replacement equipment;
- Loss of trade: if a dangerous activity is prohibited with immediate effect, some or all of a business may need to be shut down until remedial action has been taken. In some cases, this could mean shutting down production or operations entirely;
- Damage to reputation: details of the prohibition notice will be recorded on a publicly accessible database on the HSE website and be available to view for 5 years. This can result in serious and potentially irreparable damage to the business and employer-brand.
What should you do if you get a prohibition notice?
If your business has been served with a prohibition notice, it must cease the prohibited activity by the date specified in the notice. This means that if the notice has immediate effect, the activity identified by the HSE officer as giving rise to a risk of serious injury must stop immediately, unless and until the matters and any contraventions of the law have been remedied. Any failure to comply with a prohibition notice is a criminal offence, and can result in hefty fines and even custodial sentences, so this must be addressed urgently.
In some circumstances, especially where there has been a flagrant disregard for safety, the service of a prohibition notice may represent the start of a criminal investigation, and prosecution for health and safety offences, again with the potential for significant financial and custodial penalties. However, even if you were not aware of your wrongdoing, and this was not deliberate, any unsafe practices in the workplace are still a very serious matter. It is therefore important to review the way that you do things and take the necessary steps to put this right. It is also important to cooperate with the HSE at all times and without delay.
The HSE are acting in the best interests of the people you work with, and anyone else exposed to your unsafe practices, so any advice and recommendations should be taken as an opportunity to learn from your mistakes. You should try to make a good impression, be polite and stay calm, where antagonising or obstructing an inspector in their duties is likely to lead to greater scrutiny. If you receive a prohibition notice, it means that something has gone seriously wrong in your health and safety procedures, putting others at risk, where the onus lies with you to take corrective steps to put this right and remove any danger.
It is all too easy to forget that people are you biggest asset, where business owners often become so focused on meeting targets that they unconsciously take risks, failing to make time to complete risk assessments or maintain safe systems of work. Being served with a prohibition notice should therefore be approached positively and proactively, providing an opportunity for you to put in place safe working practices and procedures.
In most cases, the prohibition notice will set out what remedial measures need to be taken to address any dangerous activity. In theory, you can adopt an alternative way of remedying the problem, provided this achieves the same standard. However, if you do decide to do things differently to the measures suggested in the notice, it is always best to discuss your reasons for this with the HSE officer and obtain their approval first. If at all possible, it is usually best to take the necessary corrective action in line with any remedial measures as recommended in the prohibition notice. By not delaying in putting things right, the quicker your business can resume operations as normal and the less time will need to be spent in investigating the matter, keeping any recoverable costs incurred by HSE to a minimum.
Can a prohibition notice be withdrawn?
Under section 23 of the HSWA, a prohibition notice may be withdrawn by the HSE at any time before the end of any period specified for compliance. However, a deferred notice will only be withdrawn in limited circumstances, for example, where a mistake was made on the notice, the situation has subsequently changed since it was served or where further information has come to light which makes the original notice inappropriate.
Importantly, an immediate prohibition notice cannot be withdrawn, although there is a right of appeal to an employment tribunal. Unlike improvement notices which will be suspended on appeal, a prohibition notice will only be suspended pending the outcome of an appeal by order of the tribunal. This is because of the potentially serious risk of injury to people as identified by the issuing HSE officer. This means that the notice will stand until the appeal has been decided or the tribunal orders it to be suspended.
Prohibition notice FAQs
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Legal disclaimer
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing Agency for the Professional Services Sector.
