Any organisation which fails to comply with legislation runs the risk of a loss of reputation and with it the loss of customers. Increasingly, companies look carefully at the safety record of potential business partners and requests for details of any safety convictions have become standard on tender questionnaires. You probably would not want to work for an organisation which had a poor record in these areas and so your expertise and knowledge would be lost to the company.
Breaches of certain laws often result in an organisation having to cease production until the errors have been rectified. This loss of production will inevitably result in a loss of income which, in a worst case scenario, could result in the company going out of business.
You may now be able to see how important it is that an organisation remains compliant with all legislation. With the emphasis on health and safety that comes with facilities management, coupled with other areas such as employment and human rights laws, the Facilities Manager plays a key role in enabling the organisation to remain compliant. The COSHH Regulations do not cover work with asbestos, lead or radiation because these substances are governed by their own sets of regulations. Much like other health and safety regulations, COSHH requires employers to either prevent exposure to hazardous substances altogether or, where that is not possible, reduce it to as low as is reasonably practicable.
Employers must carry out a COSHH risk assessment, and implement the controls it identifies, before employees start work with any hazardous substance. To gauge how dangerous processes are, employers will need to gather information on the substances.
This can come from a variety of sources, such as the HSE, the internet or suppliers. Chemical products should be supplied with a safety data sheet. This document describes the hazards the chemical presents, and gives information on handling, storage and emergency measures in case of accident. Employers must work out if it is possible to eliminate the risk. If it is not possible to eliminate the risk, steps should be taken to reduce exposure.
Working time—goods and passenger vehicle drivers. In England and Wales, the HSE and local authorities are also able to make charging decisions and commence prosecutions for non compliance; in Scotland, charging decisions and prosecutions are brought by the Procurator Fiscal.
Prosecution is one of a number of enforcement decisions which may be taken by the enforcing authority. Others include serving prohibition or improvement notices, withdrawing approvals, and issuing cautions.
Practice Note: Powers of health and safety inspectors under the Health and Safety at work etc. Act explains the powers granted to HSE inspectors, local authority environmental health officers and inspectors from the ORR and the ONR to enforce health and safety law. It also covers the ability to prosecute health and safety offences in England and Wales.
It explains what the notices must contain, how they can be served, withdrawing and variation of notices as well as the consequences of non-compliance with a notice. The Practice Note also explains the grounds for appealing an improvement or prohibition notice and challenging notices before the Employment Tribunal.
The HSE will apply the principles in its published Enforcement Policy Statement and take into account the Code for Crown Prosecutors to assess whether a prosecution is justified. The decision to prosecute must be kept under continuous review. Where there is a work-related death, the police, with assistance from the HSE or other relevant enforcing authority, will be responsible for investigating whether sufficient admissible evidence exists for there to be a realistic prospect of conviction for a serious criminal offence, other than a health and safety offence, or for corporate manslaughter under the Corporate Manslaughter and Corporate Homicide Act CMCHA See: Corporate manslaughter—overview.
If there is insufficient evidence of a serious criminal offence, the investigation and prosecution will be run by the HSE under health and safety law.
It is important that only one prosecuting authority brings a prosecution in respect of a given set of facts. Under the CMCHA , a defendant may be indicted on the same indictment with both corporate manslaughter and health and safety offences arising out of the same facts. It includes the policy on work-related deaths, health and safety offences and enforcement and considers the prosecution approach for cases involving both CMCHA and HSWA offences and the fees for intervention FFI regime.
Practice Note: Health and safety crisis management—a UK practical guide highlights the practical steps which need to be considered by those advising on the immediate aftermath of a serious health and safety workplace accident in England, Wales and Scotland. Practice Note: Dealing with dawn raids by the Health and Safety Executive sets out what the HSE is, the main reasons it may carry out a raid, its powers, and the consequences of failing to co-operate with one.
Practice Note: What happens after an incident on site? It covers what an interview under caution, or PACE interview is, providing advice before an interview under caution, where an interview may take place, how the interview is to be conducted, the record of the interview and no comment interviews and the provision of written statements under caution. As the majority of offences under HSWA and the health and safety regulations are triable either way, proceedings may be commenced at any time but may only be started by certain specified persons.
The prosecution must prove a breach of duty by the defendant to ensure the health and safety, or the absence of risk to the health and safety, of its employees or others outside the workplace. Once a prima facie breach has been established, the burden of proof passes to the defendant to prove on the balance of probabilities that he has done all that was reasonably practicable in the circumstances to prevent the risk.
Health and safety offences may be committed whenever a defendant cannot show that it was not reasonably practicable to avoid a risk of injury or lack of safety. Usually such prosecutions must be brought within six months from the date when the offence was committed but in certain circumstances the time limit will not apply.
Under HSWA , it is an offence for a person to do various prohibited acts. Where a corporate offence is proven to have been committed with the consent, connivance or attributable to the neglect of a director or senior officer of the organisation, that individual also commits an offence—regardless of whether the organisation is in fact prosecuted for that offence or not. Under HSWA , enforcing authorities may appoint inspectors to enforce health and safety provisions.
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