Regularly we are asked for our "top tips" for rural businesses handling interactions with their Health & Safety Regulator. For the majority of rural businesses, the Regulator is the Health & Safety Executive ("HSE"), whose Inspectors can issue Notices of Contravention ("NoC"). As it is not formal enforcement action, a NoC can be overlooked. However, it should be viewed as a pre-cursor to formal action – potentially even prosecution - and so should not be ignored.
What is a Notice of Contravention?
A NoC is notification that an HSE inspector considers a business is in material breach of its health and safety duties. This formal notification is the trigger for Fee for Intervention being issued, whereby the duty holder/ business is then charged for any investigation undertaken by the Regulator, at the current rate of £166 per hour.
Usually, the NoC will arrive sometime after the Inspector's visit, by post or email. It will list the areas where the Inspector considers the business has breached its health and safety duties - i.e. it is alleging that the business has broken the law. Usually, the business will be required to submit a written response to the NoC by a set deadline. This requires the business to detail what steps it has taken to correct the alleged legal breaches. It is, therefore, very important that careful consideration is given to this written response before sending to the HSE. We recommend you seek legal advice before drafting this response as it can have a binding effect on the business in any future dealings with HSE.
Can a business challenge a NoC?
As it is not formal enforcement action, there is no appeal process for a NoC. Accordingly, if you consider one has been issued incorrectly or unfairly, it is recommended you seek legal advice to consider what options there may be. There are some less formal steps that can be taken to try to resolve matters. Much will depend on the attitude of the Inspector and any evidence that business can put forward in support of its position.
Nowadays, in nearly every case that results in a prosecution, a NoC has been issued by the Regulator. The absence of a response to a NoC and/or a response which appears to accept the breaches listed within it may risk increasing the chances of a prosecution being commenced, or prejudice your position in defending that prosecution.
For further advice in relation to Notices of Contravention or other aspects of dealing with health and safety regulators, please contact Victoria Anderson.