1. What format will the inspection take?
The Health and Safety Executive (HSE) has announced that workplace COVID inspections will continue even as restrictions relax. Inspections are being conducted both by phone and in person. Our experience indicates that the initial contact/questioning is likely to be conducted over the phone, but if considered necessary, then a follow up in-person inspection may be conducted at the workplace. It is also possible that an in-person visit may occur without notice, prior to a call.
In a 'cold call' scenario, ensure you have identified who the call should be passed to and that this information has been shared with all relevant staff who might be the ones to answer the call. The nominated person should be someone who has a very good working knowledge of the business' COVID safety measures and has ready access to documents such as the COVID Risk Assessment.
2. Who will contact the business for such an inspection?
Due to the volume of COVID inspections being undertaken, the HSE has been working with licenced partners to divide the workload. It is common (and completely understandable!) to focus on co-operation with an official body before it has been established that is who you are in fact dealing with. As employers with duties in terms of confidentiality and GDPR, it's important to establish the identity of the person/people asking the questions. HSE Inspectors carry warrant cards which they will be happy to produce upon request. Any person working as a licenced partner of HSE will carry ID, confirming who they are as well as a letter from HSE confirming they are authorised to undertake the inspection. Always ensure that you are dealing with legitimate bodies before providing them with information relative to your business and/or its employees.
3. What information will the Regulator want to see?
You will be asked to produce the business' COVID Risk Assessment as well as any supporting documentation that may be relevant, such as details of staggered staff arrival times or limitations on numbers able to congregate in communal areas at one time. As mentioned above, it is a good idea ahead of time to identify somebody to act as the designated point of contact, should an inspection take place. This person will be the main point of contact for the Regulator and should be able to escort them around the premises to assist the Regulator in carrying out their inspection. The Regulator will be looking to see if what is stated in your risk assessment is being followed in practice.
The Regulator may wish to speak with employees and question them on systems in use by the business. They may seek feedback from your employees to ensure that the business has fulfilled its legal duty to consult its employees in relation to health and safety arrangements. It is recommended that you commit the consultation process to writing so that it can be evidenced, if required.
They may also ask you to produce additional documents beyond your Risk Assessments. Any documents produced to the Regulator should only be provided in copy or, if they insist on originals, please ensure that you take a copy for your own records.
If any request by the Regulator or their attitude towards the inspection causes you concern, then we recommend you seek legal advice.
4. What power does the Regulator have if COVID measures are not enough?
The vast majority of COVID inspections resolve via informal, verbal advice. If a business shows willingness to co-operate and to follow the advice of the Regulator, then it is unlikely that formal action will be taken. However, there have been cases, including a recent prosecution, where formal action has been taken due to a lack of co-operation and/or refusal to follow advice issued by the Regulator.
Remember an employer's obligations in terms of COVID safety fall are incorporated in the general duty to ensure insofar as is reasonably practicable the health, safety and welfare of employees and others who may be affected by a business's undertaking. This covers visitors to premises, contractors, members of the public etc.
If, having given informal verbal advice, the Regulator believes or can see that such advice has not been acted upon by the employer then the Regulator can consider issuing Enforcement Notices which are a means of formal action taken for a failure to comply with health and safety duties. These notices take the form of either an Improvement Notice (requiring a process to be improved so that it meets the legal standard required) or Prohibition Notices (prohibiting a process from being undertaken until such time as it meets the legal standard required).
Enforcement notices will appear on a company's record and can have implications in terms of future procurement processes, for example. Failure to comply with an enforcement notice is a criminal offence. If your business is issued with an enforcement notice, it is strongly recommended that you seek legal advice as soon as possible.
If you have any questions on this topic or anything else relating to health and safety then please contact Victoria Anderson.
Health and Safety by Brodies is a free app which provides instant access to health and safety guidance, wherever you are in the UK. Developed by Brodies' legal experts, the app provides checklists, background information and news updates which help you manage major incidents, internal investigations and regulator visits. Find out more - https://healthandsafety.brodies.com/
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