The Health and Safety Inspectorate’s (HSI) aims are to protect the health, safety and welfare of people at work, and to safeguard others, mainly members of the public, who may be exposed to risks from the way work is carried out.
The HSI’s functions include:
- proposing new or updated laws and standards
- conducting research
- providing information and advice
- enforcing health and safety law in relation to work activities
This enforcement policy statement sets out the general principles and approach which the HSI will follow. Health and safety inspectors who take enforcement decisions are required to follow this enforcement policy statement.
The appropriate use of enforcement powers, including prosecution, is important:
- to secure compliance with the law, and
- to ensure that those who have duties under it may be held to account for failures to safeguard health, safety and welfare
In allocating resources, the HSI will have regard to the principles set out in this policy statement, and the need to maintain a balance between enforcement and other activities, including inspection.
The purpose of enforcement
The ultimate purpose of the HSI is to ensure that duty holders manage and control risks effectively, thus preventing harm. The term ‘enforcement’ has a wide meaning and applies to all dealings between the HSI and those on whom the law places duties (employers, the self-employed, employees and others).
The purpose of enforcement is to:
- ensure that duty holders take action to deal immediately with serious risks
- promote and achieve sustained compliance with the law
- ensure that duty holders who breach health and safety requirements, and directors or managers who fail in their responsibilities, may be held to account; this may include recommending prosecution, in the circumstances set out later in this policy
Enforcement is distinct from civil claims for compensation; it is not undertaken in all circumstances where civil claims may be pursued, nor to assist such claims.
Inspectors have a range of tools at their disposal in seeking to secure compliance with the law and to ensure a proportionate response to criminal offences. Inspectors may offer duty holders information, and advice, both face to face and in writing. This may include:
- warning a duty holder that in the opinion of the inspector, they are failing to comply with the law
- where appropriate, serving improvement and prohibition notices
- reporting a matter to the Attorney General for his consideration which may result in prosecution
Giving information and advice, and issuing improvement or prohibition notices, are the main means which inspectors use to achieve the broad aim of dealing with serious risks, securing compliance with health and safety law and preventing harm. A prohibition notice stops work in order to prevent serious personal injury. Information on improvement and prohibition notices is made publicly available.
Every improvement notice contains a statement that, in the opinion of an inspector, an offence has been committed. Improvement and prohibition notices, and written advice, may be used in court proceedings.
Prosecution is an important way to bring duty holders to account for alleged breaches of the law. Where it is appropriate to do so in accordance with this policy, inspectors will prepare and provide a report to the Attorney General in addition to issuing an improvement or prohibition notice.
Investigating the circumstances encountered during inspections, or following up incidents or complaints, is essential before taking any enforcement action. In deciding what resources to devote to these investigations, an inspector will have regard to the principles of enforcement set out in this statement and the objectives published in strategic plans. In particular, in allocating resources, an inspector will strike a balance between investigations and mainly preventive activity.
Sometimes the law is prescriptive - spelling out in detail what must be done. 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 how to achieve the goals put in place is often set out in approved codes of practice (ACoPs). ACoPs give practical advice on compliance and have a special legal status. If someone is prosecuted for a breach of health and safety law and did not follow the relevant provisions of an ACoP, the ACoP may be used as an indication of the standard that is expected.
Advice is also contained in other guidance material describing good practice. Following this guidance is not compulsory, but doing so is normally enough to comply with the law. Neither ACoPs nor guidance material are in terms which necessarily fit every case. In considering whether the law has been complied with, inspectors will need to take relevant ACoPs and guidance into account, using sensible judgement about the extent of the risks and the effort that has been applied to counter them. More is said about these matters further on in this statement.
Inspectors will use discretion in deciding when to investigate or what enforcement action may be appropriate. The decision-making process which inspectors will follow when deciding on enforcement action, is set out in this policy, which is publicly available. HSI expects that such judgements will be made in accordance with the following principles.
The principles of enforcement
The HSI believes in firm but fair enforcement of health and safety law. This should be informed by:
- the principles of proportionality in applying the law and securing compliance
- consistency of approach
- targeting of enforcement action
- transparency about how the HSI operates and what those regulated may expect
- accountability for the HSI’s actions
These principles should apply both to enforcement in particular cases and to the HSI’s management of enforcement activities as a whole.
Proportionality means relating enforcement action to the risks. Those whom the law protects and those on whom it places duties (duty holders) expect that action taken by inspectors to achieve compliance or bring duty holders to account for non-compliance, 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.
In practice, applying the principle of proportionality means that the HSI will take particular account of how far the duty holder has fallen short of what the law requires and the extent of the risks to people arising from the breach.
Some health and safety duties are specific and absolute. Others require action so far as is reasonably practicable. Inspectors will apply the principle of proportionality in relation to both kinds of duty.
Deciding what is reasonably practicable to control risks involves the exercise of judgement. Where duty holders must control risks, so far as is reasonably practicable, inspectors considering protective measures taken by duty holders must take account of the degree of risk on the one hand, and on the other the sacrifice, whether in money, time or trouble, involved in the measures necessary to avert the risk. Unless it can be shown that there is gross disproportion between these factors and that the risk is insignificant in relation to the cost, the duty holder must take measures and incur costs to reduce the risk.
Inspectors will expect relevant good practice to be followed. Where relevant good practice in particular cases is not clearly established, health and safety law effectively requires duty holders to establish explicitly the significance of the risks to determine what action needs to be taken. Ultimately, the courts determine what is reasonably practicable in particular cases.
Some irreducible risks may be so serious that they cannot be permitted irrespective of the consequences.
Targeting means making sure that contacts are targeted primarily on those whose activities give rise to the most serious risks or where the hazards are least well controlled. That action is focused on the duty holders who are responsible for the risk and who are best placed to control it, whether employers, manufacturers, suppliers or others.
The HSI will decide which inspections, investigations or other regulatory contacts, should take priority according to the nature and extent of risks posed by a duty holder’s operations. 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. Certain very high hazard sites will receive regular inspections so that the HSI can give public assurance that such risks are properly controlled.
Any enforcement action will be directed against duty holders responsible for a breach. This may be:
- employers in relation to workers or others exposed to risks
- the self-employed
- owners of premises
- suppliers of equipment
- designers or clients of projects
- employees themselves
Where several duty holders have responsibilities, inspectors may take action against more than one when it is appropriate to do so, in accordance with this policy.
When inspectors issue improvement or prohibition notices, or forward a report to the Attorney General, the inspector will ensure that, where ever possible, a senior manager or the duty holder concerned, is notified.
Consistency of approach does not mean uniformity; it means taking a similar approach in similar circumstances to achieve similar ends.
Duty holders managing similar risks expect a consistent approach from the HSI in the advice tendered, the use of enforcement notices, decisions on whether to prosecute, and in the response to incidents.
It is recognised that, in practice, consistency is not a simple matter. Inspectors are faced with many variables including the degree of risk, the attitude and competence of management, any history of incidents or breaches involving the duty holder, previous enforcement action, and the seriousness of any breach, which includes any potential or actual harm arising from a breach of the law. Decisions on enforcement action are discretionary, involving judgement by inspectors. The HSI has arrangements in place to promote consistency in the exercise of discretion.
Transparency means helping duty holders to understand what is expected of them and what they should expect from the HSI. It also means making clear to duty holders not only what they have to do but, where this is relevant, what they don't. That means distinguishing between statutory requirements and advice, or guidance about what is desirable but not compulsory.
Transparency also involves the HSI in having arrangements for keeping employees, their representatives, and victims or their families informed. These arrangements must have regard to legal constraints and requirements.
This statement sets out the general policy framework within which the Health and Safety Inspectorate should operate. Duty holders, employees, their representatives and others also need to know what to expect when an inspector calls and what rights of complaint are open to them:
- when inspectors offer duty holders information, or advice, face to face or in writing, inspectors will tell the duty holder what to do to comply with the law, and explain why. Inspectors will, if asked, write to confirm any advice, and to distinguish legal requirements from best practice advice
- in the case of improvement notices the inspector will discuss the notice and, if possible, resolve points of difference before serving it. The notice will say what needs to be done, why, and by when, and that in the inspector’s opinion a breach of the law has been committed
- in the case of a prohibition notice the notice will explain why the prohibition is necessary
Regulators are accountable to the public for their actions. This means that the HSI has policies and standards (such as the 4 enforcement principles above) against which they can be judged, and an effective and easily accessible mechanism for dealing with comments and handling complaints.
Making a complaint about the Inspectorate
If you wish to make a complaint about the Inspectorate, contact the Director of Health and Safety in the first instance, so that the matter can be reviewed and resolved where possible.
States Departments and employees of the States are subject to the law, with the States Employment Board (SEB), by virtue of the Employment of States of Jersey Employees (Jersey) Law, 2005, being the legal employer of most States employees. Whilst SEB has delegated the function of carrying out the responsibilities under this law to Chief Officers of States departments, or in the case of administrative departments, the heads of those departments, the legal responsibility to comply with the law remains with SEB.
As the HSI is part of a States department and Inspectors are employees of SEB, arrangements are in place to address the potential for any conflict of interest in accordance with the guidance note issued by the Attorney General.
Where it appears that a breach of the law may have been committed by a Minister, the SEB or an employee of the Department, or any States connected entity and either:
- the file is referred to the Minister or Departmental Officer for a view as to whether there should be a reference to the Attorney General; or
- the Department has taken the decision not to refer a file to the Attorney General and no regulatory or administrative action is taken; or
- some remedial regulatory or administrative action has been taken
a quarterly report detailing the apparent breach and any administrative or regulatory action that has been taken is submitted to the Attorney General
As with prosecution, the HSI uses discretion in deciding whether incidents, cases of ill health, or complaints should be investigated.
Investigations are undertaken in order to determine:
- whether action has been taken or needs to be taken to prevent a recurrence and to secure compliance with the law
- lessons to be learnt and to influence the law and guidance
- what response is appropriate to a breach of the law
To maintain a proportionate response, most resources available for investigation of incidents will be devoted to the more serious circumstances. The HSI recognises that it is neither possible nor necessary for the purposes of the law to investigate all issues of non-compliance with the law which are uncovered in the course of preventive inspection, or in the investigation of reported events.
The HSI will carry out investigations of a work-related death in conjunction with the States of Jersey Police and / or Honorary Police.
In selecting which complaints or reports of injury or occupational ill health to investigate, and in deciding the level of resources to be used, the HSI will take account of the following factors:
- the severity and scale of potential or actual harm
- the seriousness of any potential breach of the law
- knowledge of the duty holder’s past health and safety performance
- the enforcement priorities
- the practicality of achieving results
- the wider relevance of the event, including serious public concern
The HSI’s procedure for dealing with comments and handling complaints about a workplace is set out on the following web site page.
Health and safety at work: our approach to complaints
The decision on whether to bring a prosecution rests with the Attorney General; this may be on the basis of a recommendation by an inspector. When deciding whether an apparent breach of the law should be referred to the Attorney General, inspectors must refer to the guidance issued by the Attorney General entitled "Note for Officers of Regulatory Departments when considering whether or not a suspected breach of the law should be referred to the Attorney General".
Before prosecutions can be instituted, the Attorney General will need to be satisfied that there is sufficient evidence and that prosecution is in the public interest. The decision as to how to proceed is one for the Attorney General not the HSI, although views of the HSI will be taken into account.
In accordance with the guidance note, an apparent breach of the law should be referred to the Attorney General in the following circumstances:
- where it was significant
- where it is seen to have been conscious and deliberate
- where the public interest makes it more important that there should be a prosecution
- where it was one of a series of small breaches which suggest a persistent lack of conformity with the law
- where there was a perceived trend of similar minor breaches by others which might call for prosecution as a warning or example
The guidance note also sets out the following circumstances where it may be appropriate not to refer an apparent infraction:
- where it was minor
- where the offence was committed as a result of a genuine mistake or misunderstanding*
- where it would not be in the public interest for the offender to be prosecuted.* For example, if by relying on information volunteered in the course of a genuine enquiry to form the basis of a prosecution, this would deter others from seeking assistance from the HSI to comply with the law*
- where it was a single incident*
- where there had been a long delay between the HSI having knowledge of a suspected breach of the law and investigating it*
* These factors must be balanced against the seriousness of the offence.
Prosecution of individuals
Subject to the above, the HSI will recommend prosecution of individuals if it considers that a prosecution is warranted. In particular, inspectors should consider the management chain and the role played by individual directors and managers; action should be taken against them where the inspection or investigation reveals that the offence was committed with their consent or connivance, or to have been attributable to neglect on their part, and, where appropriate, to do so in accordance with this policy.
Action by the courts
Health and safety law gives the courts considerable scope to punish offenders and to deter others, including unlimited fines and imprisonment for some offences.
Death at work
The police are responsible for deciding whether to pursue a manslaughter investigation and whether to refer a case to the Attorney General to consider possible manslaughter charges. The HSI is responsible for investigating possible health and safety offences. If in the course of a health and safety investigation the HSI finds evidence suggesting manslaughter, it should be passed on to the police. If the police or the Attorney General decide not to pursue a manslaughter case, the HSI will carry out enforcement of the law in accordance with this enforcement policy.
States departments must comply with health and safety requirements and they are also subject to enforcement action, including prosecution. In deciding when to investigate or what form of enforcement action to take, the HSI will follow the same approach as for others, in accordance with this enforcement policy.
Penalties for health and safety offences
The Health and Safety at Work (Jersey) Law 1989 (HSW), sets out the offences and maximum penalties under health and safety legislation:
- improvement notice issued under HSW Article 13; unlimited fine
- prohibition notice issued under HSW Article 14; unlimited fine and / or 2 years’ imprisonment
- breach of Articles 3 - 8 of the HSW which sets out the general duties of employers, self-employed persons, manufacturers and suppliers to safeguard the health and safety of workers and members of the public who may be affected by work activities; unlimited fine
- other breaches of HSW and breaches of ‘relevant statutory provisions’ under the law, which include all health and safety regulations and impose both general and more specific requirements; unlimited fine
- contravening licence requirements which apply to the removal of asbestos, entails serious hazards to health which must be strictly controlled; unlimited fine and / or 2 years' imprisonment