Hi Eliot
I would do something similar to when my employer (well actually me - as the covering letter was just sent to the company with no indication of which two legged person it was aimed at!) two Improvement Notices over 2 years after an incident where an Inspector had been threatening prosecuction both of the company and one of our employees.
So, you point out the issues with the Notice as you see them, suggest they might wish to withdraw the Notice and explain that in the meantime you are appealing against the Notice.
You only have 21 days to appeal so you cannot wait on the HSE response to your letter before taking that step.
Once the appeal is lodged the Notice is suspended until an Industrial Tribunal makes its directions.
That gives time for the Inspector and their boss (in our case it was their boss' boss as the first line manager was on maternity leave) to consider their position.
Withdrawing the Notice is likely to be much less painful than having the Notice chucked out by the Tribunal.
Whilst all this is happening you might want to get a second opinion from an occupational hygienist but on the basis of what you have set out so far, I doubt that you need to do this.
You also need to object to the Notice of Contravention as you don't want to be forking out whatever the hourly rate is for any more of HSE's time than is necessary.
On the basis of what you have written an NoC was probably warranted at BEFORE improvements were made but NOT once those had been done - so the ££££ clock should have stopped ticking when the improvements had been made and YOU can demonstrate that what you have done has brought exposure down to a small fraction of the OEL.
Definitely time to read Sections 21 and 24 of HSWA again (which presupposes that you have previously studied Section 24!).
There is a small risk in this strategy - if the Tribunal rules in favour of HSE then that ££££ clock continues to tick but on the basis of what you have set out, I think it unlikely that the Tribunal would not dismiss the Notice.
So, Section 21:
The Inspector has to be of the opinion that the duty holder is or has been in breach of whatever legislation is cited in the Notice in circumstances where such breach(es) is likely to be repeated or to continue.
As the appellant, you need to be able to explain to the Tribunal the principle of "reasonable practicability" as that is the one issue where the burden of proof rests with the duty holder, but ONLY on the balance of probabilities.
What you are in effect doing is challenging the validity of the Inspector's opinion. You have the evidence, the Inspector does not (assuming there isn't something you haven't told us).
So, your evidence is that exposure is way below the OEL, so whatever the residual risk is VERY small.
Then you need to discuss with the Tribunal the distinction between the judgments in Edwards v National Coal Board (which will be HSE's default position) and Marshall v Gotham.
Throw in some stuff from R2P2 on the subject of various degrees of tolerability of risk and you should be just about home and dry.
Ultimately it is about what further reduction in risk you might achieve from providing, cleaning, maintaiing, replacing RPE + all the admin hassles that introduces against the costs in time, money and effort of that mitigation.
Tiny reduction in risk, big cost - ergo disproportionate (Marshall v Gotham) OR grossly disproportionate (Edwards v NCB) and not reasonably practicable.
It would be wise to enlist the help of a competent solicitor who knows about health and safety law in the process.
...and of course when the Notice is either withdrawn or dismissed then you can tell HSE to take back any invoices for NoC for the period following the improvements made.
The alternative is that you do what the Inspector says and have an ongoing problem until you stop the production or automate the processes.
So, in my opinion, you are better dealing with this head on.
It was a little easier for us.- the Improvement Notices said that we didn't have systems to
(a) fulfil our designer duties under CDM
(b) do risk assessments.
So, no issue of reasonable practicability - we either had the systems or we didn't and we had plenty of evidence to say that we did.
Did take a 4 hour meeting before the Regional Director finally announced that the Notices were going to be withdrawn, but they knew this at the meeting and I knew that they knew that this was going to happen, but they went through the motions (possibly in an attempt to minimise the embarrassment of having to overrule their Inspector).
You do need to anticipate that HSE will send in people to do some sampling (in a belated attempt to gather the evidence that the Inspector should have had before writing out the NoC, let alone the Improvement Notice), but if your results are based on appropriate methods, you should be fine.
Finally, remember that appeals against HSE Notices are VERY rare. In 12 years in HSE I had two appeals against Improvement Notices and never against a Prohibition Notice.
In the two cases, I asked the duty holder what their basis for appeal was. Both explained that they had every intention of complying but that I had given them a form and they thought they were required to complete it and send it off! Both appeals duly withdrawn, when I explained that it was their choice whether to appeal.
Please let us know what happens.
P
Edited by user 21 November 2022 16:42:48(UTC)
| Reason: Two typos