Prohibition Notices don’t just stop a particular – possibly business critical – activity. They are also listed on a public register. Here, we explain when a business might receive a Prohibition Notice, how they should respond, and what to do if they believe a Notice is neither fair nor proportionate.
What is a Prohibition Notice?
Under sections 21, 22, and 23 of the Health & Safety at Work etc. Act 1974 (the 1974 Act), the Health & Safety Executive (HSE) has powers to issue notices that require a business or individual to make specified improvements within a certain period of time, or even stop conducting a particular activity entirely until the issues and risks are addressed.
Usually immediately active, a Prohibition Notice suspends an activity, or prevents a certain individual from carrying it out, from the moment it is served until the time specified by the inspector that serves the Notice (this is normally until the recommendations made by the HSE have been implemented). They can also be deferred where stopping a process mid-cycle would create additional risks.
The HSE can serve a Prohibition Notice on a business, an individual, or for an activity that “involves (or will involve) a risk of serious personal injury.”
Failure to comply with a Notice is a criminal offence and can lead to a prosecution. The HSE can also take additional steps to ensure that any requirements included in the Notice are carried out via a court order under section 42 of the 1974 Act.
When is a Prohibition Notice served?
Prohibition Notices are served by an inspector during, or following, an inspection by the HSE. During the course of their visit, an inspector may have identified something – be it a lack of commonly expected precautions or a significant gap in an employee’s core competency – which they believe presents an immediate risk of serious injury. They can also cover processes or activities that pose health risks over the long-term, such as those leading to silica or asbestos exposure.
When deciding whether a Notice is an appropriate and proportionate response to the identified risk, an Inspector will use the HSE’s Enforcement Management Model (EMM), alongside relevant benchmarks and industry standards, to determine the degree of risk.
What is the difference between a Prohibition Notice and an Improvement Notice?
Improvement Notices do not prevent a business from carrying out an activity. Instead, they require a duty holder to remedy the contraventions that gave rise to the Notice.
Improvement Notices can complement Prohibition Notices for the same circumstances. They are also used where contraventions may not pose a serious, immediate risk, but do require improvements to make them address the identified risks with adequate controls.
Improvement Notices are often used to ensure sustained compliance with legal obligations, regulations, and industry standards. They can also act as a preventative measure for wider failings that may lead to a Prohibition Notice if allowed to continue, such as poor maintenance procedures.
Can I appeal a Prohibition or Improvement Notice?
Notices can be appealed through the Employment Tribunal.
Once an Inspector has served a Notice, the duty holder has 21 days to appeal to the Tribunal. This time limit is only extended in exceptional circumstances so it is very important to act swiftly.
Appeals do not automatically suspend the requirements of a Prohibition Notice, although they do for Improvement Notices. This means that a duty holder could still be prosecuted for breaching a Notice’s requirements while appealing it, unless they apply to the Tribunal for a Prohibition Notice to be suspended until disposed of or withdrawn.
What do I need to appeal a Notice?
Notices must include certain information to be valid. This includes:
- the nature of the alleged offences, or risk of harm,
- the matters prohibited or to be improved,
- what gave rise to the matters in breach,
- how such matters may be remedied, and
- a deadline for compliance.
On receiving an appeal, the Tribunal will serve it on the HSE Inspector, who can either defend the appeal or allow it. If the appeal is defended, the Tribunal will set case management directions.
Unlike appeals for Fees for Intervention (FFIs), appeals at the Employment Tribunal allow both parties to call witnesses to support their case. This can be done in the form of a written statement, although the Tribunal has powers to compel witnesses to attend if deemed necessary.
What happens if the Tribunal upholds an appeal?
If an appeal is upheld, the effects of the Notice are cancelled. This means that the prohibited activity can resume. The Tribunal can also affirm Notices, however, and may even choose to modify their requirements or dates for compliance.
Where a party believes that the other side has acted “vexatiously, abusively, disruptively or otherwise unreasonably”, they may decide to apply for a costs order. This can be done at the conclusion of an appeal, and up to 28 days after the judgment date. Costs orders may also be used where a party’s claim or response “had no reasonable prospect of success.”
A Tribunal can order any amount up to £20,000 in costs. If higher costs are considered appropriate, the Tribunal can refer the matter to the civil court.
What are the reputational risks of a Prohibition Notice?
Under the Environment and Safety Information Act 1988 (the ESIA), the HSE has a legal obligation to automatically upload notices to its Public Register of Enforcement Notices, particularly those concerning risks that could affect members of the public.
As well as impacting productivity, a Notice can seriously damage a business’ reputation among all stakeholders, including employees. Prohibition Notices are also often asked about in PQQs and tenders, so they are not risk free.