5th June 2024

When Does The HSE Decide To Prosecute?

Introduction

The advice line has received several recent calls from clients who have been subject to visits from the Health and Safety Executive.  It can be confusing why some companies are taken to task by the HSE after accidents at work, and others aren’t. In this blog we explore the rationale behind HSE’s decision making – and what you can do to reduce the risk of falling foul of the regulator.

HSE’s Framework

The HSE prosecutes certain companies while opting not to pursue legal action against others. People are often confused as to the reasons behind these decisions – or whether they are just random. To guide Inspectors in prosecution decisions, HSE operates an Enforcement Policy Statement and Enforcement Management Model which provide a framework for all enforcement action taken. The underlying principle is that enforcement action must be both proportionate to the seriousness of the breach and the level of risk posed.

HSE adheres to a two-stage prosecution test in a similar way to the Crown Prosecution Service. The first stage is meeting the requirement for sufficient evidence for a realistic chance of conviction. This appears to be something the HSE are particularly strong on as the 2022/2023 statistics revealed they had a 94% conviction rate over 216 criminal prosecutions.

If the case passes the evidential test stage, then the HSE must then go on to consider the public interest test. They must balance factors for and against prosecution carefully and fairly. There is a presumption that it is in the public interest to prosecute if:

• There has been a death.
• There has been a failure to comply with an Improvement/Prohibition Notice (or a repetition of a breach of a formal caution).
• There has been a ‘reckless disregard’ for health and safety requirements.
• The duty-holder’s standard of managing health & safety has been found to be far below what is required and gives rise to significant risk.
• False information has been supplied wilfully, or with an intent to deceive; or
• Inspectors have been intentionally obstructed from undertaking their work
• The Enforcement Management Model serves as a guide to ensure that consistent enforcement decisions are made by inspection and are aligned with HSE’s Policy. While decisions by the HSE may still be challenging to comprehend at times, they are guided by a clear framework.

How to Avoid Prosecution

HSE’s conviction rate when a prosecution is brought remains extremely high when compared to other criminal cases with the average fine being £145,000.

You can steer clear of an HSE prosecution by proactively managing your health and safety practices. Implement robust arrangements to ensure that employees receive adequate training, that comprehensive risk assessments are undertaken and accurate records are retained. Regular health and safety audits will help to ensure that your business is compliant with relevant laws, regulations, and industry standards. This reduces the risk of potential legal issues, financial penalties, fines, and reputational damage.

If you do receive a visit from an HSE inspector, ensure that you follow any advice that you are given, and keep the HSE updated along the way. If you are issued a notice, you should do everything you can to comply within the timescales set – this will make a prosecution far less likely.