Enforcing Health and Safety

Section 21 of the Health and Safety at Work Act etc. Act 1974 (as applied to the Isle of Man) details that, where an inspector is of the opinion that a person is contravening one or more of the relevant statutory provisions, or has contravened one or more of those provisions in circumstances that make it likely that the contravention will continue or be repeated, s/he may serve an improvement notice.

The notice should:

• state that s/he is of that opinion;
• specify the provision(s) in question;
• give particulars of the reasons why s/he is of that opinion;
• require the person to remedy the contravention or the matters occasioning it; and
• specify the period for compliance, which should be not less than 21 days from the date of service of the notice, being the period in which the recipient of the notice may lodge an appeal with the employment tribunal.

Where any of the relevant statutory provisions applies to a building, an improvement notice should not direct measures to be taken which are more onerous than any current building regulation, unless the relevant statutory provision imposes specific requirements which are more onerous.

An improvement notice cannot be used to require a duty holder to do something which has no attainable end within the compliance period. For example, a notice might require a duty holder to provide, by a given date, a guard on a dangerous part of machinery but it cannot require the person to maintain the guard in good condition as this would be an ongoing requirement. A notice can, however, properly require that, by the given date, a suitable system is put into place to ensure that the guard is maintained in an efficient state, efficient working order and good repair.

When an improvement notice is served, there should be a discussion with the duty holder about the notice and how s/he can comply with it. An effort should be made to resolve any points of difference.

The notice should not direct a duty holder to go beyond what is legally required of them, however; additional advice may be put in a covering letter, making it clear that it is guidance and does not form part of the notice.

If an appeal is brought against service of an improvement notice, the operation of the notice is suspended until the appeal is either heard or withdrawn. Details of how to appeal a notice is contained on the reverse of the notice.

The Inspectorate maintains a register of improvement notices which can be accessed here.  

Provisions relating to the service of prohibition notices are set out in sections 22 and 23 of the Health and Safety at Work etc. Act 1974 (as applied to the Isle of Man). Prohibition notices may be served in relation to activities which are being, or are likely to be, carried on, and to which any of the relevant statutory provisions apply (or will apply).

Section 22 allows an inspector to serve a prohibition notice on a person if s/he is of the opinion that an activity carried on (or likely to be carried on) by or under the control of that person involves (or will involve) a risk of serious personal injury.

If the activity in question has been carried on but has been temporarily suspended as a result of an accident, the activity may still be continuing for the purposes of section 22 and the notice may be framed in the present tense. If, however, the activity has not previously been carried on, the inspector 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.

A prohibition notice should:

• state that the inspector is of the above opinion;
• specify the matters which in his/her opinion give, or will give, rise to the risk; and
• direct that the activity should not be carried on by or under the control of the person on whom the notice is served unless the matters giving rise to the inspector's opinion have been remedied.

A lack of commonly expected precautions (eg properly qualified persons) may justify an opinion that there is a risk of serious personal injury where other factors, which could have reduced the level of risk, are also absent.

Where an inspector is of the opinion that the activity involves a contravention of any of the relevant statutory provisions, the prohibition notice should:

• state that s/he is of that opinion;
• specify the provision(s) being contravened; and
• give details of the reason(s) why s/he is of that opinion.

However, provided that the inspector reasonably believes that there is a risk of serious personal injury, a contravention of a statutory provision is not necessary for a prohibition notice to be valid.

The requirement that an activity should not be carried on until specified matters have been remedied may either take effect immediately or be deferred until the end of a specified period.

It would not be appropriate to defer the effect of the notice in circumstances where immediate action is required to control the risk of serious personal injury, including a risk of long-term damage to health where the effect is cumulative and any exposure will contribute to the ultimate damage.

A deferred prohibition notice would be appropriate where stopping the activity immediately would introduce additional risks. This would be the case, for example, where it would be dangerous to interrupt a particular process in mid–cycle.

A prohibition notice may be served on any person in control of a process or a piece of plant subject to the relevant statutory provisions. This includes an employee who may not be aware that the activity is unsafe and is acting in accordance with his/her employer's instructions. In such circumstances, the employer should be contacted to advise them of the situation and the proposed notice. The inspector may consider serving a notice on both employer and employee.

If an appeal is brought against service of a prohibition notice, whether immediate or deferred, the operation of the notice is NOT automatically suspended. Details of how to appeal a notice is contained on the reverse of the notice.

The Inspectorate maintains a register of prohibition notices which can be accessed here.

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