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Posted By Philip Beale
The original question
"Could some-one explain the protocol regarding the issue of a prohibition notice when a HSE inspector serves one on an activity.
Has anyone on here successfully appealed a prohibition notice?"
Why appeal against it what do you disagree with in the inspectors findings. surely it has got to be easier to but the corrective actions in place than try to appeal against it.
I would take an Improvement notice as being something quite clearly unsafe and dangerous for the inspector to put the prohibition notice in place?
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Posted By GT
Clare,
I think your first posting was absolutely correct, and answerd the thread, which has now been hi-jacked.
GT
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Posted By Steven John Bateson
The only grounds I know of are-
1/ The inspector does not work for the enforcing authority that enforces your activities i.e he works for HSE and the local authority enforces for your premeises or visa-versa (as long as the inspector doesn't hod a joint warrant, which he/she may)
2/ You can prove that it was unreasonable for the inspector to have reached the opinion he did in issuing the PN, under the circumstances prevalent at the time it was issued.
In my opinion, anything else will almost certainly fail or at best result some minor amendment to the PN.
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Posted By Robert K Lewis
Proving the inspectos belief was not reasonable is extremely difficult and often not worth the deterioration in relationship with the HSE. I had one situation where the contractor had invited HSE in to help resolve an issue. A building wall was part of the boundary and was cracked and unstable. The owner would not allow contractor onto premises to make the structure safe. Foundations were to be dug within one metre. Contractor was not happy to underpin the wall without further information or continue work. Inspector served PN on contractor to stop him working in the collapse zone of the wall even though he had no intention of so doing. Inspector said it was reasonable to suppose the contractor might work there with the wall unsafe even though they had raised the issue. The contractor has this PN on his record.
No PACE caution or any such matter here and quite rightly so. But appeal a notice - be very wary.
Bob
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Posted By peter gotch
Hi Bob
Whilst taking your point about risk of deteriorating relationship with HSE, I think your example was eminently appealable.
S22(2) of the HSWA as amended by Consumer Protection Act 1987 S3 Schedule 3 states.....
....an inspector is of the opinion that, as carried on or LIKELY to be carried on by or under the control of the person in question......
In the circumstances that you describe how is the Inspector going to convince Employment Tribunal, that is was likely that the contractor was going to put workers at risk.
May be the Inspector needs to check that they have an up to date version of the Act!?
Regards, Peter
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Posted By Robert K Lewis
Peter
It was ultimately decided that it was politic to leave it. The contrctor was not going to work anyway and thuis complied with the PN in any case. I have seen a few of these "protective" PNs issued recently - Buncefield was the most recent major case of this. If I remember rightly it was done to enable the HSE to control the clean up operations, or something to that effect.
Bob
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Posted By maddog RM
Hazel,
the current IOSH position is clearly vastly different to what is being discussed and taught on the IOSH evidence gathering course which I presume IOSH have accredited.
Is the course information incorrect? If so, is the tutor being contacted and all delegates to tell them so?
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Posted By maddog RM
Dave,
how would a police officer make an arrest? To enter your premises he needs a warrant even if he is with an enforcing inspector. I have checked with several senior police officers and they all tell me a police officer can't enter a premises unless he is invited by the owner/occupier, is in hot pursuit, or he has a warrant. So we are back to the HSE inspector that can't enter the premises either as they suspect a crime and they also now require a warrant to search.
The only way round this is the HSE inspector to not let you know they suspect an offence but if this comes out later, they can't prosecute you. In fact you could prosecute them for gaining entry under false pretense!
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Posted By db
Maddog. Give it up. A HSE inspector can enter a premises at any reasonable time. They are not going in to make an arrest, they already have a warant and they are not the police.
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Posted By Dave Wilson
Maddog what happens is the HSE / LA etc can enter at all reasonable times using the powers under HASAW, the police do not do the entering, they are there in attendance and support and can arrest the individual for breach of the peace etc if they assault or obstruct the officer.
The mere presence of the Police normally would make the person see sense and allow the HSE Inspector access.
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Posted By Bruce Sutherland
I only had to do it once - and it was in conjunction with carrying out a PACE interview in the back of a police van
My understanding of what I was doing was
I had right of entry at any reasonable time - if the undertaking was at work then that was reasonable
If they were not playing ball then that was obstruction and so rather than get smacked I went to the police who were delighted to help as I was ticking multi agency boxes and it was different and interesting! It was clearly stated in s20 as a power for me to take a constable with me if there was reason for me to think that there was likely to obstruction -
so in essence HSE have the warrant and if there was any argy bargey then the police had arrest - big muscles - large stick or whatever else required
Don't think it is any different these days
Bruce
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Posted By maddog RM
The police are there to uphold the law.
Given this, I'm sure they would not enter any premises without a warrant as the law requires them to have. The HSE often rely on the employers goodwill or employers ignorance of the law to get them where and what they want.
Would you let a burglar into your house if he knocked? If a policeman stopped you for speeding would you say I've got bald tyres as well. Why let an enforcing officer onto your premises when he is acting outside the law and is possibly trying to prosecute you?
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Posted By NCL
maddog,
Why are you being so stubborn and not admitting that you have made a mistake about HSE powers of entry to premises?
I, like others on the forum, have been one of HM Inspectors of Health and Safey and can say that they do have a permanent warrant that does allow then to enter any premises at any reasonable time whether that is for a proactive inspection or accident investigation or other. Read section 20. It's the first thing we were ever taught.
You can't confuse a police warrant with an HSE warrant they are made under different powers. HSE have far greater powers in that respect, they just can't arrest. The only time they have to read a PACE caution is if they suspect someone may incriminate themselves - the caution just advises them that whatever they say can be used in evidence.
You'd come across far better if you just admitted your mistake rather than digging your heels in. We all make mistakes, just accept it and stop arguing a point you can't win.
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Posted By andrew morris
I have to say I have watched this thread with interest. Normally I would have waded in, all guns blazing... But so many inspectors or people with enforcement experience already have. I am amazed it is still going on. Mad dog - You are wrong. The HSE and LA's have had legal advise from specialist h&s barristers (I know because I was present at the dispensing of the info) - They do not need to issue PACE Code B's under any circumstances (although some still do because of confusion with other Env Health legislation). We have the power to enter, demand any info we require and require answers from people (unless they are the potential defendant). This isn't an attack on you personally as you seem to be taking it, otherwise you would have let it drop in the face of such a wealth of factual information. To anyone reading, I strongly recommend you don't get smart with an inspector and regurgitate any of the info mad dog is handing out, especially until you have sought professional legal advice.
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Posted By I H
I have once had an IN served on a site where an inspector came to an opinion I disagreed with. I was late in being informed of the notice, some 4 days later and phoned the inspector directly. We then came to an agreement that he had in fact perhaps been a little over zealous and withdrew the notice and gave me a form saying so. No court, no appeal, sensible adult discussion.
So in answer to the original posting, there is another way, I'm not sure if you can do this with a PN, but you must have your facts straight and suitable evidence. Maybe our inspectors could comment. In my case though, I think I would have won an appeal if we could be bothered to take it through.
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Posted By Hazel Harvey
Maddog,
We are going to take up this issue with the course tutor. I will let you know the outcome of this shortly.
Hazel Harvey
Director of Professional Affairs
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Posted By Dave Wilson
A PN cannot be legally lifted by the HSE / LA the only way that this can happen is you either comply or appeal to an Industrial Tribunal, so overzealous Inspectors CANNOT LIFT a PN once served and that is one of the reasons why people get miffed.
They may want to lift it and say maybe I was wrong but legally they cant, so they defend the decision at a tribunal and get the big guns on board and try scare tactics to get you to withdraw your appeal.
remember that parties at a tribunal are responsible for their own costs so don't get brow beaten by the HSE solicitors about we will recover our costs for it is very rare that they can.
The notice has to be reasonable, fair and the inspector must be of the opinion that there is / was / will be a 'serious risk' to health or safety, they cannot just serve a PN if a IN was more appropriate just to stop you working.
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Posted By maddog RM
Hazel
many thanks.
All other contributors to this thread, I have been gauging feedback to determine what others opinions were to what was taught on an IOSH incident investigation course. I look forward to the outcome in due course.
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Posted By andrew morris
as a former inspector and still EHO, I can confirm inspectors CAN withdraw a notice. Don't believe them if they say they can't.
Hazel - you said two weeks ago you were looking into this - If IOSH is failing its course subscribers, it members and ultimately the world of health and safety by giving out duff information on a course, it needs to be sorted now. As a chartered member I feel that I like to think people are using advice posted on this forum as guidance and information gained through courses and you are letting them down. Massively. Please let us all know the outcome on this forum - so we know when you respond.
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Posted By Robert K Lewis
Maddog
The posters to this thread would have been far happier if you had been transparent in your motives for posting rather than demonstrating an apparently deliberate obtuseness.
Bob
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Posted By Mike Dallow
Can an employee have the right to refuse to make a verbal or written statement during an accident investigation.
All input would gratefully be received.
Cheers Mike
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Posted By maddog RM
They can refuse to give a statement but should an incident go to court it would not be favourable for them. Get them to sign to say they won't give a statement.
However what does the company H&S policy say? Do employees have to cooperate with the employer? Have they been briefed on this?
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Posted By anon1234
Mike,
I think the answer is technically no, but in practice how do you prevent someone from not making a statement by saying they can't remember or didn't see it?
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Posted By Adrian Watson
No, they cannot refuse t give a statement to their employer as this would be breach of an implied term of a contract to cooperate with the employer.
Regards Adrian
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Posted By water67.
Hi, Of course like all areas of law you can appeal. But perhaps you need to consider why an HSE inspector has taken such a drastic measure. In my experience they do not issue these orders lightly. Thus you should firstly address the subject of the order and try to comply. I do not wish to cast doubts or your ability, knowledge etc. of H&S. But i must agree with some of the postings, that you do appear to be out of your depth.
cheers.
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