When does the HSE prosecute SMEs?
The HSE’s framework
It can be confusing why some companies are taken to task by the HSE after accidents at work while others aren’t. People might wonder if there’s a clear reason behind these decisions or if it’s just random. However, the HSE’s prosecution decisions are guided by an Enforcement Policy Statement (EPS) and Enforcement Management Model (EMM). These frameworks ensure that enforcement actions are proportional to the severity of the breach and the level of risk involved.
Two-stage prosecution test
The EPS mandates the HSE to adhere to a two-stage prosecution test similar to the Crown Prosecution Service. Firstly, it must meet the evidential test, necessitating sufficient evidence for a realistic chance of conviction. In cases like falls from height, the HSE scrutinises the employer’s actions to mitigate height-related risks, contemplating whether a jury might perceive the employer as having taken all reasonably practicable measures.
If the evidential test is passed, the HSE conducts the public interest test. This test balances factors favouring prosecution against those opposing it, with a presumption that prosecution is in the public interest in cases involving deaths, non-compliance with improvement notices and reckless disregard for health and safety. Other grave violations which may lead to prosecution in the case of public interest include false information being knowingly given, the overall standards of health and safety are far below what is required, or the inspectors have been obstructed whilst carrying out their investigation.
A consistent approach
The EMM serves as a guide for consistent enforcement decisions aligned with HSE policy. While each case is unique, the EMM allows HSE inspectors to exercise discretion to account for individual investigation complexities. This model is not solely for prosecution decisions but a comprehensive tool encompassing all enforcement options. By providing a structured approach, the EMM assists in informed decision-making, ensuring that each case is assessed in context. While decisions by the HSE may still be challenging to comprehend at times, they are guided by clear frameworks that consider resource constraints, ongoing risks, potential outcomes and public expectations.
Tip. For more about the guidance issued to HSE and local authority inspectors in England, Wales and Scotland, see The next step .
How to avoid a prosecution
You can steer clear of an HSE prosecution by proactively enhancing your health and safety practices. This involves implementing robust safety protocols, ensuring employees receive comprehensive training, conducting regular risk assessments and maintaining accurate records. By staying ahead of potential hazards, valuing safety awareness and complying with regulations, you can significantly reduce the chance of facing legal consequences even if a serious accident does occur at your workplace.
For the legal guidance for inspectors, visit https://www.tips-and-advice.co.uk , Download Zone, year 22 issue 16.
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