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Prohibition
notices are concerned with stopping activities which
involve "a risk of serious personal injury"
Section
22 of the Health and Safety at Work Act states that:
| "(1) |
This
section applies to any activities which are being
or are about to be carried on by or under the
control of any person, being activities to or
in relation to which any of the relevant statutory
provisions apply or will, if the activities are
so carried on, apply. |
| (2) |
If
as regards any activities to which this section
applies an inspector is of the opinion that, as
carried on or about to be carried on by or under
the control of the person in question, the activities
involve or, as the case may be, will involve a
risk of serious personal injury, the inspector
may serve on that person a notice (in this Part
referred to as "a prohibition notice").
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| (3) |
A
prohibition notice shall
| (a) |
state
that the inspector is of the said opinion;
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| (b) |
specify
the matters which in his opinion give or,
as the case may be, will give rise to the
said risk; |
| (c) |
where
in his opinion any of those matters involves
or, as the case may be, will involve a contravention
of any of the relevant statutory provisions,
state that he is of that opinion, specify
the provision or provisions as to which
he is of that opinion, and give particulars
of the reasons why he is of that opinion;
and |
| (d) |
direct
that the activities to which the notice
relates shall not be carried on by or under
the control of the person on whom the notice
is served unless the matters specified in
the notice in pursuance of paragraph (B)
above and any associated contravention of
provisions so specified in pursuance of
paragraph (C) above have been remedied.
|
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| (4) |
A
direction given in pursuance of subsection (3)(D)
above shall take immediate effect if the inspector
is of the opinion, and states it, that the risk
of serious personal injury is or, as the case
may be, will be imminent, and shall have effect
at the end of a period specified in the notice
in any other case. " |
In
other words a prohibition notice can be imposed by
an inspector if s/he is of the opinion that an activity
carried on or likely to be carried on by or under
the control of a person involves or will invoice a
risk of serious personal injury.
It
was once the case that the HSE inspector had to prove
that the risk of serious personal injury was 'imminent'.
This requirement has now been repealed.
HSE's
Enforcement Guide states that:
"If
the activity has not previously been carried on
you must be of the opinion that it is likely to
be carried on in a way which will involve a risk
of serious personal injury; if the activity has
been carried on but has temporarily stopped, you
must be of the opinion that it is likely that the
activity will recommence and make that clear on
the Prohibition Notice."
It
should be noted that one set of circumstances can
result in the serving of both an 'improvement notice"
and a "prohibition notices".
A
failure to comply with a prohibition notice is an
offence under section 48(1) of the Health and Safety
at Work Act 1974. Indeed it is one of only four offences
which gives the court power to imprison a person.
Contravention
of Statutory Provision?
It is not necessary for there to have been a contravention
of a statutory provision as long as the inspector
has reasonable cause to believe that there was a risk
of serious personal injury. However, if it is the
inspectors opinion that there has been a contravention,
it is necessary that the inspector:
| (a) |
states
that s/he is of that opinion |
| (b) |
specify
the provision or provisions which are being contravened; |
| (c) |
give
details of the reasons for the opinion |
If
it is subsequently concluded that the there was no
contravention, the notice should still stand.
What
circumstances given rise to "risk of serious
personal injury"
According to HSE's Enforcement Guide
A
lack of commonly expected precautions (e.g. properly
qualified persons) can justify an opinion that there
is a risk of serious personal injury, in the absence
of factors which reduce the risk to acceptable levels.
Risk
of injury also includes, according to the HSE, circumstances
where there is a risk of long term damage to health
"where the effect is cumulative and any exposure
will contribute to the ultimate damage."
Deferred
Prohibition Notices
A deferred prohibition notice may be served when an
inspector is of the view that it would be less safe
to require the activity to stopped. HSE's Enforcement
Guide gives the example of "where it may be unwise
to interrupt a process in mid cycle".
However
according to HSE's Enforcement Guide.
"A
notice should however not be deferred if the the
risk of serious personal injury is that that immediate
action is required to control that risk. This applies
both where there is a risk of injury and also where
the risk is of long-term damage to health, where
the effect is cumulative and any exposure will contribute
to the ultimate damage."
It
goes onto state:
"When
deciding whether a prohibition notice should apply
immediately or be deferred, [an inspector] should
consider the relative risks. In a continuous process
the risks may be minimized by serving a deferred
notice, to give a suitable period to shut down safely.
To serve a deferred prohibition notice [an inspector]
should first of all be able to serve a prohibition
notice and the only reason it is not made immediately
effective is because the risks of stopping immediately
are greater than the risks of deferring the prohibition
until later. "
On
whom the notice should be imposed
The notice should be imposed upon the person in "control"
of the activity. It should be noted that the person
in control of the activity may not be the person who
is subject to any statutory duty. As the Enforcement
Guide states: "an employee may have been told
to carry on a process in a way which was unsafe, although
s/he was unaware that is was unsafe. In such circumstances
there may be a need to serve a notice on the employee,
as well as the employer."
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