1.6 All authorised officers shall be fully acquainted with the requirements of this policy and any future amendments.

2.1 The ultimate purpose of the Council's Health & Safety Service is to ensure that duty holders manage and control risks effectively, thus preventing harm.

2.2 The term 'enforcement' has a wide meaning and applies to all dealings between the Council and those on whom the law places duties.

2.3 The purpose of enforcement is to:

• Ensure that duty holders take action to deal immediately with serious risks;

• Promote and achieve sustained compliance with the law;

• Ensure that duty holders who breach health and safety requirements, and directors or managers who fail in their responsibilities, may be held to account, which may include bringing alleged offenders before the courts.

2.4 The Council recognises that enforcement is distinct from civil claims for compensation and is not undertaken in all circumstances where civil claims may be pursued. Similarly, whilst information of enforcement activities may be subsequently disclosed (see 'Disclosure of Information' below), enforcement is not undertaken to assist such claims.

2.5 The Council believes in a firm but fair approach to the enforcement of health and safety law. As such, its enforcement activities will be informed by the principles of:

2.6 Proportionality

Proportionality means relating enforcement action to the risks. In this policy, 'risk' (where the term is used alone) is broadly defined to include a source of possible harm, the likelihood of that harm occurring, and the severity of any harm. Those whom the law protects and those on whom it places duties (duty holders) may expect that action taken by the Council to achieve compliance or bring duty holders to account for non-compliance will be proportionate to any risks to health and safety, or to the seriousness of any breach, which includes any actual or potential harm arising from a breach of law.

2.7 In such respects and, in particular, it is the policy of the Council that;

2.7.1 in practical application of the principle of proportionality it will take particular account of how far the duty holder has fallen short of what the law requires and the extent of the risks to people arising from the breach;

2.7.2 given some health and safety duties are specific and absolute and others require action so far as is reasonably practicable, the Council will apply the principle of proportionality in relation to both kinds of duty;

2.7.3 in recognition that what is 'reasonably practicable' to control risks involves the exercise of judgement, the Council will, in considering protective measures taken by duty holders (required to control risks so far as is reasonably practicable), take account of the degree of risk on the one hand, and on the other the sacrifice, whether in money, time or trouble, involved in the measures necessary to avert the risk.

2.8 Targeting

Targeting means making sure that resources are targeted primarily on those whose activities give rise to the most serious risks or where the hazards are least well controlled; and that action is focused on the duty holders who are responsible for the risk and who are best placed to control it.

2.9 In such respects and, in particular, it is the policy of the Council that;

2.9.1 in accordance with its Health and Safety at Work Law Enforcement Service Plan, the Council will have systems for facilitating and prioritising inspections, investigations and/or other regulatory contacts according to the nature and extent of risks posed by a duty holder's operations;

2.9.2 enforcement action will be directed against duty holders responsible for a breach. This may be employers in relation to workers or others exposed to risks; the self-employed; owners of premises; suppliers of equipment; designers or clients of projects; or employees themselves. Where several duty holders have responsibilities, the Council may take action against more than one when it is appropriate to do so in accordance with this policy;

2.9.3 where inspectors issue improvement or prohibition notices; withdraw approvals; vary licences or exemptions; issue formal cautions; or prosecute, the Council will ensure that a senior officer of the duty holder concerned (preferably at board level) is also notified.

Consistency of approach does not mean uniformity. It means taking a similar approach in similar circumstances to achieve similar ends.

2.11 In such respects and, in particular, it is the policy of the Council that;

2.11.1 the Council will utilise this policy to promote consistency in the exercise of its discretion;

2.11.2 where enforcement action is to be taken other relevant bodies and/or enforcing authorities shall be advised and consulted as may be appropriate. These bodies may include the lead authority in accordance with the LAU/HELA Local Authority Partnership Scheme and any other enforcement agency which may have an active interest in the action(s) taken (e.g. where there are multiple outlets or branches in different local authority areas, the Fire Authority, the HSE, the Environment Agency, Social Services etc.);

2.11.3 reference shall be made to any detailed advice offered by LAU and HELA as well as information gathered from the Environmental Health Information network (EHC Net).

Transparency means helping duty holders to understand what is expected of them and what they should expect from the Council and its services. It also means making clear to duty holders not only what they have to do but, where this is relevant, what they don't.

2.13 In such respects and, in particular, it is the policy of the Council that;

2.13.1 in all enforcement contacts, there will be a clear distinction between statutory requirements and advice or guidance about what is desirable but not compulsory;

2.13.2 in all enforcement contacts, the reason(s) why any enforcement action is contemplated and/or has been undertaken will be discussed and/or explained in writing as may be appropriate;

2.13.3 before formal enforcement action is taken, inspectors will provide an opportunity to discuss the circumstances of the case and, if possible, resolve points of difference, unless immediate action is required;

2.13.4 duty holders, employees and/or their representative(s), complainants, victims of work based incidents and/or their families will be advised and kept informed, subject to legal constraints and requirements, of any enforcement action(s) by the Council which may be relevant to them;

2.13.5 in all enforcement contacts, duty holders, employees and/or their representative(s), complainants, victims of work based incidents and/or their families will be advised what rights of complaint are open and available to them;

2.13.6 a leaflet summarising the content of this enforcement policy and the HSC leaflet HSC14 entitled 'What to Expect When a Health & Safety Inspector Calls' will be provided to all enforcement contacts.

2.15 The Council recognises that it is accountable to the public for its actions and has set this policy and other standards against which it can be judged.

2.16 In recognition of its accountability, the Council has an effective and easily accessible mechanism for dealing with comments and handling complaints. The procedures for dealing with comments and handling complaints are set out in the publications referred to in paragraph 2.13.6 above.

3.1 Health & Safety enforcement responsibility has been delegated by the Council to the Environmental Health Manager (EHM). In turn, the EHM will delegate authority and powers to authorised officers/inspectors.

3.2 In all cases, enforcement action will only be considered, initiated and/or undertaken by legal representatives and/or inspectors who are authorised to do so in accordance with the Environmental Health Services' authorisation procedure for health and safety. Authorisation is based upon competencies detailed under HSC(G) 4 or equivalent, relative to the role of the inspector/officer and HASWA codes of practice.

3.3 Where appropriate and, when seeking to exercise enforcement activities, an inspector shall produce and display his instrument of appointment or a duly authenticated copy on request.

3.4 The Council will embrace the full range of tools and mechanisms at its disposal in seeking to secure compliance with the law and ensure a proportionate response to criminal offences. Through inspection, investigation and/or in response to requests for service, inspectors may offer duty holders information, and advice, both face to face and in writing. This may include warning a duty holder that, in the opinion of the inspector, they are failing to comply with the law. Where appropriate, inspectors may also serve improvement and prohibition notices, seize and/or detain articles, information or equipment, seek to withdraw approvals, seek to vary licence conditions or exemptions, issue formal cautions, and they may prosecute.

3.5 In all cases, inspectors will exercise considerable discretion as to the nature of enforcement activities undertaken in accordance with the HSC's enforcement management model (see below) and this policy.

3.6 In all cases, inspectors will give verbal advice regarding the outcome of the inspection at the conclusion of the programmed inspection or investigative visit.

3.7 Where appropriate, all verbal advice will be followed with a letter to the relevant duty holder(s), within 10 working days of the visit. Such letters will be issued in circumstances where significant contraventions have been identified and/or a broad range of lesser contraventions are identified beyond the capacity of the verbal advice.

3.8 In all circumstances, formal letters will comply with relevant regulations and codes of practice in terms of format and content and will, in mirroring the principles of enforcement, include:

• all the information necessary for the individual or organisation to understand the remedial work required and why it is necessary;

• the regulations contravened, measures which will enable compliance with the legal requirements and an indication that other means of achieving the same effect may be chosen;

• indication of any recommendations of good health and safety practice, under an appropriate heading, to show that they are not a legal requirement;

• a time period for compliance, to include a specified revisit if necessary.

4.1 The Enforcement Management Model is a framework, which helps inspectors make enforcement decisions in line with the HSC's Enforcement Policy Statement. As a tool, which promotes consistency in enforcement, the Council and its inspectors will embrace and implement the EMM in accordance with this policy.

4.2 However, the Council recognises that its inspectors are confronted by a myriad of unique variables when carrying out inspections, assessments and investigations: different work activities, sectors, organisational structures, contractual relationships etc. As such, assessing risk and compliance with the law ranges from being relatively straightforward to extremely complex.

4.3 The Council further recognises that the EMM is a simple model which does not truly capture all the nuances and complexities of discretionary decision-making in all circumstances. Accordingly, whilst the EMM provides a framework for improving consistency, an inspector's discretion shall not be fettered by artificially constraining all decisions and actions to the model.

4.4 Accordingly, all enforcement action(s) and decisions will be undertaken with regard to, but not bound by, the current enforcement management model (EMM) published by the HSC.

5.1 The Council will exercise discretion in accordance with the principles of enforcement and its Health & Safety Service plan in deciding whether incidents, cases of ill health, or complaints should be investigated.

5.2 Where investigations are undertaken, they will be conducted in order to determine:

• causes;

• whether action has been taken or needs to be taken to prevent a recurrence and to secure compliance with the law;

• lessons to be learnt and to influence the law and guidance;

• what response is appropriate to a breach of the law.

5.3 To maintain a proportionate response, most resources available for investigation(s) will be devoted to the more serious circumstances. The Council recognises that it is neither possible nor necessary to investigate all issues of non-compliance with the law which are uncovered in the course of preventive inspection(s), or in the investigation of reported events.

5.4 Whilst the Council will carry out a site investigation of a reportable work-related death, in selecting which other complaints or reports of injury or occupational ill health to investigate and in deciding the level of resources to be used, the Council will take account of the following factors:

• the severity and scale of potential or actual harm;

• the seriousness of any potential breach of the law;

• knowledge of the duty holder's past health and safety performance;

• the enforcement priorities;

• the practicality of achieving results;

• the wider relevance of the event(s), including serious public concern.

5.5.1 Where enforcement action by means of an investigation is undertaken and requires either covert or overt monitoring of a situation, the Council will advise those who may be subject to any such investigation that they may be subject to such monitoring.

6.6.1 HELA circular LAC 67/1 stipulates the provision of a nationally consistent framework for inspection and rating of all premises where local authorities enforce health and safety.

6.2 The Council will abide by these priorities and inspect premises for which it has enforcement responsibility from time to time in accordance with the given framework and its own Health & Safety Service plan.

6.3 During inspections, officers will use their professional judgement to assess the duty holder's performance, in relation to the hazards and risks to both employees and the public. This will be based on the standards of safety, health and welfare observed during inspection or similar visits, and the capacity of management to maintain high standards.

6.4 A numerical rating will be applied to each premises inspected to allocate a priority rating and determine the frequency of inspection. The inspection programme will be based on this. The use of the numerical rating system ensures that the highest priority is given to those premises/business undertakings presenting the highest risk to employees and/or the public.

6.5 National priorities for inspection(s) are determined by guidance contained in HELA circular LAC 40/5. This circular reflects the priorities determined by the Health and Safety Commission and its own Revitalising Health and Safety initiative. These are amplified in the HELA Strategic Plan 2001-04.

6.6 HELA LAC 40/5 recognises that in general, health and safety inspections undertaken by local authorities are whole premise inspections, but requires local authorities to focus their attention on certain key issues. At present, these include:

• falls from height;

• workplace transport;

• musculoskeletal disorders;

• stress;

• slips and trips.

6.7 These priority issues will be specifically highlighted in all inspection and complaint proformas, and associated reports used and issued by the health and safety service. The issues will be given adequate focus and priority in all inspections, accident and complaint investigations and any other dealings with duty holders by the health and safety service.

7.1 Where appropriate, the Council will make use of informal action to secure compliance with legislation. This action includes offering information and advice, and verbal and written warnings through the use of letters and the issue of health and safety inspection and investigation reports, including those generated following an inspection.

7.2 The Council considers it is appropriate to use informal action when:

• an act or omission is not serious enough to warrant formal action; and

• it would not be in the public interest to pursue a more formal remedy; and

• the duty holder's past history has demonstrated that it can be reasonably expected that informal action will achieve compliance; and

• the consequences of non-compliance will not pose a significant risk to health and safety; and

• there is a degree of confidence in the duty holder's managerial abilities.

8.1 Notices are effective and quick and require employers to put dangerous situations right (i.e., an improvement notice) or to stop doing something altogether (i.e., a prohibition notice). However, if the circumstances warrant it, an inspector may also recommend prosecution proceedings without any prior warning and without any recourse to alternative sanctions.

8.2 Statutory notices can only be issued by inspectors who have been authorised to do so by the Council. Notices shall not be signed by authorised officers on behalf of another unless they have witnessed the matter to which the notice relates. All statutory notices will be checked in accordance with the health and safety quality procedures before service.

8.3.1 Where there is a breach of the law, which is more serious than a minor technical breach, inspectors may issue an improvement notice to tell the duty holder to do something to comply with the law. Inspectors may issue an improvement notice where one or more of the following criteria applies:

• there are significant contraventions of the relevant legislation; and/or

• there is a lack of confidence in the organisation's response to an informal approach; and/or

• there is a history of non-compliance with informal action; and/or

• standards are generally poor, with little management awareness of statutory requirements; and/or

• the consequences of non-compliance could have potentially serious effects on health and safety; and/or

• even if it is intended to prosecute, effective action may need to be taken as quickly as possible to remedy conditions that are serious or deteriorating.

8.3.2 Where appropriate, the duty holder(s) will be given the opportunity to discuss the issues with the inspector before formal action is taken and, if possible, resolve points of difference.

8.3.3 Before serving an improvement notice, inspectors will, where appropriate, discuss with the duty holder the breaches of the law to which it will relate, the action(s) which will be needed to comply and appropriate time scales for completion of the work(s). Where appropriate, inspectors will also advise the duty holder(s) that alternative work(s) of similar effect may achieve the necessary compliance.

8.3.4 In all cases where an improvement notice is served, the notice will say what needs to be done, by when and why. The time period within which to take specified remedial action(s) will be at least 21 days to allow the duty holder time to appeal to an Employment Tribunal if they so wish (see 'Appeals Provisions' below). However, realistic time limits shall be applied to notices and, where appropriate in the circumstances, will be agreed with the duty holder concerned.

8.3.5 Where an improvement notice is served, the inspector will provide a written explanation of the reasons for the action(s) within 10 working days.

8.3.6 When considering the use of statutory notices, authorised officers will ensure that they follow all relevant guidance, codes of practice and LAU/HELA guidance.

8.3.7 Failure to comply with an improvement notice shall normally result in court proceedings. Authorised officers shall therefore have gathered sufficient evidence to justify their issue, be prepared to pursue non-compliance in the courts and be satisfied that proceedings are likely to succeed.

8.4.1 Where an activity involves, or will involve, a risk of serious personal injury, an appropriately authorised inspector may serve a prohibition notice prohibiting the activity immediately or after a specified time period. The inspector may not allow the prohibited activity to be resumed or, in appropriate cases, may only allow the activity again once satisfactory remedial action has been taken.

8.4.2 It will generally only be necessary to consider the use of a prohibition notice in one or more of the following circumstances:

• the consequences of not taking immediate and decisive action to protect health and safety would be unacceptable; and/or

• a risk of serious personal injury to health and safety can be demonstrated. This might include evidence from relevant experts; and/or

• the guidance criteria, specified in the relevant codes of practice, concerning the conditions when prohibition may be appropriate, are fulfilled; and/or

• there is no confidence in the integrity of an unprompted offer made by the appropriate duty holder to voluntarily cease the activity associated with the risk.

8.4.3 The inspector will discuss the prohibition notice and, if possible, resolve points of difference, before serving it. Officers shall discuss with the duty holder the nature of any work(s) required as well as advising them that alternative work(s) of similar effect may achieve the necessary conditions by which compliance will be achieved, as may be appropriate.

8.4.4 In all cases where a prohibition notice is served, the notice will say what needs to be done, by when and why. The duty holder may appeal to an Employment Tribunal if they so wish (see 'Appeals Provisions' below). However, a prohibition notice will not normally be rendered ineffective pending the outcome of an appeal and shall remain in force until the appeal is determined.

8.4.5 Where a prohibition notice is served, the inspector will provide a written explanation of the reasons for the action(s) within 10 working days.

8.4.6 When considering the use of statutory notices, authorised officers will ensure that they follow all relevant guidance, codes of practice and LAU/HELA guidance.

8.4.7 Failure to comply with a prohibition notice shall normally result in court proceedings. Authorised officers shall therefore have gathered sufficient evidence to justify its issue, be prepared to pursue non-compliance in the courts and be satisfied that proceedings are likely to succeed.

8.5.1 In all cases, the duty holder concerned will be told in writing about the right of appeal to an Employment Tribunal when either an improvement or prohibition notice is served. The appeal mechanism will also be explained on the reverse or attached to the notice. The information provided will include:

• how to appeal together with a form with which to do this;

• where and within what period an appeal may be brought;

• that action on an improvement notice is suspended while an appeal is pending; and/or

• that the duty holder can apply to an Employment Tribunal for a prohibition notice to be suspended pending the outcome of an appeal.

9.1 Formal cautions shall be issued in accordance with the relevant Home Office circular and LAU/HELA guidance. The Environmental Health Manager is designated the "cautioning officer" to issue formal cautions.

9.2 Home Office Circular 59/2002 states that the purpose of the formal caution is:

• to deal quickly and simply with less serious offences;

• to divert less serious offences away from the courts;

• to reduce the chances of repeat offences

9.3 To safeguard the suspected offender's interests, the following conditions shall be fulfilled before a caution is administered:

• there must be evidence of the suspected offender's guilt sufficient to give a realistic prospect of conviction;

• the suspected offender must admit the offence;

• the suspected offender must understand the significance of a formal caution and give an informed consent to being cautioned.

9.4 If there is insufficient evidence to consider taking a prosecution, then, by implication, the conditions are not satisfied for the use of a formal caution. It is also inappropriate to use a formal caution where the suspected offender does not make a clear and reliable admission of the offence. There is no legal obligation for any duty holder to accept the offer of a formal caution and therefore no pressure will be applied to the duty holder to accept a caution.

9.5 Where a duty holder declines the offer of a formal caution, it shall be necessary to consider taking alternative enforcement action. Whilst this will probably mean taking a prosecution, this is not inevitable as it may, for example, be felt that a written warning is appropriate.

10.1 In England and Wales the decision to proceed with a court case rests with the local authority itself and, whilst the primary purpose of the Council's health and safety enforcement service is to ensure that duty holders manage and control risks effectively, thus preventing harm, the Council recognises that prosecution is an essential part of enforcement.

10.2 Accordingly, it is the policy of the Council that where, in the course of any investigation or other regulatory contact, it has collected sufficient evidence to provide a realistic prospect of conviction and has decided, in accordance with this policy and taking account of the Code for Crown Prosecutors set down by the Director of Public Prosecutions, that it is in the public interest to prosecute, then that prosecution should go ahead.

10.3 The Council will normally seek to prosecute, or recommend prosecution, where, following an investigation or other regulatory contact, one or more of the following circumstances apply. Where:

• death was a result of a breach of legislation;

• the gravity of an alleged offence, taken together with the seriousness of any actual or potential harm, and/or the general record and approach of the offender warrants it;

• there has been reckless disregard of health and safety requirements;

• there have been repeated breaches which give rise to significant risk, or persistent and/or significant poor compliance;

• in the case of serious non compliance, work has been carried out without an appropriate licence or safety case;

• a duty holder's standard of managing health and safety is found to be far below what is required by health and safety law and to be giving rise to significant risk;

• there has been a failure to comply with an improvement or prohibition notice; or there has been a repetition of a breach that was subject to a formal caution;

• false information has been supplied wilfully, or there has been an intent to deceive, in relation to a matter which gives rise to significant risk;

• a breach which gives rise to significant risk has continued despite relevant warnings from employees, their representative(s), or from others affected by a work activity, and/or;

• it is appropriate in the circumstances as a way to draw attention to the need for compliance with the law and the maintenance of standards required by law, especially where there would be a normal expectation that a prosecution would be taken or where, through the conviction of offenders, others may be deterred from similar failures to comply with the law.

10.4 In addition to the above, where inspectors are assaulted, the Council will seek police assistance, with a view to seeking the prosecution of offenders.

10.5 Where the circumstances warrant it, prosecution may be taken without prior warning and/or recourse to alternative sanctions. However, decisions on whether to prosecute will be informed by the principles of proportionality, targeting, consistency, transparency and accountability as described above.

10.6 Where inspectors consider prosecution to be an appropriate course of action they will first consult with the Principal Environmental Health Officer (PEHO) or the Environmental Health Manager to ensure that it is in accordance with this enforcement policy. The PEHO or EHM will discuss the available evidence with the Solicitor to the Council to determine whether the proposed action is appropriate in the circumstances.

10.7 The decision to refer a case for prosecution, based on the available evidence and professional judgement, is to be determined by the Environmental Health Manager or Principal Environmental Health Officer following receipt of the relevant information.

10.8 The final decision to pursue prosecution proceedings is to be made by the Environmental Health Manager in consultation with the Solicitor to the Council.

10.9.1 Where there has been a breach of the law leading to a work-related death(s), the Council will consider whether the circumstances of the case justify a charge of manslaughter.

10.9.2 To ensure that decisions on investigation and prosecution are closely co-ordinated, the Council will take account of the protocol entitled 'Work-related deaths: A protocol for liaison' jointly published by the HSE, the Association of Chief Police Officers and the Crown Prosecution Service.

10.9.3 Where, in the course of our health and safety investigation(s), Council inspectors find evidence suggesting manslaughter, all available evidence and notes will be passed on to the police authorities for their attention as may be appropriate. Subsequently, where the police or Crown Prosecution Service decide not to pursue a manslaughter case, the Council will normally bring a health and safety prosecution in accordance with this policy.

10.10 The Prosecution of Individuals

10.10.1 Sections 7, 36 and 37 of HSW Act allow for the prosecution of individuals who have committed a health and safety offence. It is the policy of the Council to identify and prosecute individuals, where appropriate in the circumstances of the case, where conviction is warranted and can be secured.

10.10.2 In particular, and where appropriate to do so in accordance with this policy, legal action will be undertaken against individual directors and/or managers where an investigation or other regulatory contact reveals that an offence has been committed with their consent or connivance or to have been attributable to neglect on the part of the individual director(s) and/or manager(s). In such circumstances and, where appropriate, the Council will seek the disqualification of any director(s) under the provisions of the Company Directors Disqualification Act 1986.

10.10.3 The Council retains the right, however, to pursue the option of taking a case against a company instead of a named individual, and will seek to do so where the circumstances can be justified.

10.11.1 In carrying out their functions, duly authorised enforcement officers have a range of statutory powers available to them. Whilst not an exhaustive list, these include the following;

• an appointed inspector may make any such examination and investigation as may be necessary and, at all reasonable times and, on production of his/her authority if requested, enter any business premises and inspect any goods as may be appropriate;

• an appointed inspector may take such measurements and photographs and make such records as may be necessary. (S)he may also take samples of any articles or substances found in any premises which (s)he has power to enter or in the vicinity of such premises;

• if an inspector has reason to believe they may be required as evidence, (s)he may seize and detain any records and, where records are held on computer, may require them to be produced in a form that can be taken away. (S)he can also seize any article or substance on the premises or in the vicinity of such premises;

• an appointed inspector may also require the production of, inspect and take copies of any books or documents for the purpose of examination or investigation. Inspectors may also require any person to afford them such facilities and assistance as may be necessary and may require a person to answer questions and sign a declaration of the truth of their answers.

10.11.2 Circumstances where officers are obstructed from carrying out their duties will not be tolerated. Instances of this nature will result in the Council seeking to prosecute those concerned.

11.1 The Council may institute civil proceedings in its own name to seek an injunction or a declaration to protect the public. This is an exceptional power confined, in practice, to cases where an offence is frequently repeated in disregard of an inadequate penalty or to cases of emergency.

11.2 In the appropriate circumstances and in the interests of public safety, the Environmental Health Manager, in consultation with the Solicitor to the Council, will consider the option of applying to the court for an injunction. As a general rule, however, officers shall bring appropriate criminal proceedings or exercise the alternative powers available under the HSWA 1974 before seeking the assistance of the civil courts.

12. PENALTIES AND ACTION BY THE COURTS

12.1 Whilst these figures may change over time, a breach of the general duties set out in the Health & Safety at Work etc. Act 1974 or a failure to comply with statutory notices now attracts a maximum £20,000 fine on summary conviction. Cases heard in the Crown Court can result in unlimited fines and/or imprisonment. A breach of associated health and safety regulations attracts a maximum £5000 fine per offence on conviction.

12.2 It is the policy of the Council to continue to raise the court's awareness of the gravity of health and safety offences and encourage them to make full use of their sentencing powers. Accordingly, whilst recognising that it is for the courts to decide whether or not a duty holder is guilty of an offence and, what penalty, if any, to impose on conviction, the Council will press the court for the imposition of the most severe penalties possible. As such, the Council will draw to the court's attention all the factors, which are relevant to the court's decision as to what sentence is appropriate on conviction.

12.3 In cases of sufficient seriousness, it is the policy of the Council in accordance with Court of Appeal guidelines to indicate to a magistrates court that the offence(s) is/are so serious that they may send the case to be heard or sentenced in a higher court where higher penalties can be imposed.

12.4 Where legal proceedings are taken and conviction is secured, it is also the policy of the Council to press the court for the full recovery of all its costs.

12.5.1 The Council will disclose health and safety information where it is legally allowed to do so. In disclosing health and safety information, the Council is obliged to follow the provisions as contained in Section 28 of the Health and Safety at Work etc. Act 1974, the Environmental Information Regulations 1992, and the Environment and Safety Information Act 1988. The Council is also obliged to follow the Code of Practice on Access to Government Information (the Code).

12.5.2 Whilst disclosure will be undertaken in accordance with the Councils disclosure policy, disclosure will not be permitted where it comes within the exempted categories of the 'Code of Practice on Access to Government Information' or the Environmental Information Regulations 1992.

12.5.3 Details of disclosure requirements can be found in Appendix (i) to this document and are categorised as follows:

• enclosure information to be made available to the Council;

• exempted categories of information;

• requirements under Section 28 of the Health & Safety at Work etc. Act 1974;

• release by consent;

• release for the purposes of function(s) conferred on the Council or its inspectors;

• release for the purposes of legal proceedings;

• release of aggregated information;

• relationship between Section 28 and the Code of Practice on Access to Government Information;

• information falling outside of disclosure provisions;

• disclosure of enforcement notices, inspection reports and convictions;

• disclosure for the purposes of civil proceedings.

13.1 In order to maximise publicity and deter others from breaching health and safety legislation, the Council will publicise and make publicly available details of all circumstances where formal action(s) have been taken. As a minimum, this will include;

• drawing (multi) media attention to factual information regarding any health and safety related conviction(s) taken by the Council;

• publicising on an annual basis, the names of all duty holders (whether a company or an individual) who have been convicted of a health and safety offence within the preceding 12 month period;

• providing and maintaining a public register (held at the Council Offices) of all the duty holders who have been served either a prohibition or improvement notice, where, for the purposes of the Environment and Safety Information Act 1988 a full copy of designated 'relevant' notices will form the registered entry. Alternatively, the information normally provided in these circumstances will include the name and address of the premises, the date of the notice, the statutory breach and the date by which the breach must be remedied.

13.2 The Council will ensure that the details of any conviction(s) are registered with the Office of Fair Trading for entry on to the central register of convictions and/or the Health & Safety Executive.

14. COMPLAINTS AGAINST THE SERVICE

14.1 It is the policy of Council that all complaints against the service are investigated in accordance with its service standards. The procedures for dealing with comments and handling complaints are set out in the publications referred to in paragraph 2.13.6 above.

14.2 Where a duty holder has cause for complaint against an inspector or cause for concern in respect of an inspector's proposed actions, the duty holder can contact the inspector's manager and ask for the matter to be investigated.

14.3 If still not satisfied with the outcome of a complaints investigation, the duty holder can use the Council's formal complaints procedure or ask for a review and determination by Council members.

14.4 A duty holder can also contact the HSE's Local Authority Unit, which will see that the complaint is followed up promptly and fairly with the Council. If it is unable to resolve the problem it will report the matter to the HSC.

14.5 In cases of maladministration, a duty holder can also make a complaint to the Local Government Ombudsman. Details are available on request.

15.1 A full text copy of this enforcement policy and/or the associated summary leaflet explaining its key elements can be freely viewed at The Guildhall, Frankwell Quay, Shrewsbury, SY3 8HQ.  Full copies of the enforcement policy will also be made available on written request. Visitors to the Council Offices can also request a photocopy of the policy on display. However, in both cases, an administrative fee may be charged for these services.

15.2 The full text of associated legal codes, which may be issued and/or quoted in connection with a health and safety investigation and/or regulatory contact are also available for viewing at the Council Offices. However, due to copyright reasons, we regret that we are unable to provide photocopies or otherwise reproduce these documents.

16.1 Situations may arise when action is brought against an inspector arising out of their inspectorial duties. Under Section 26 of the Health and Safety at Work Act 1974, local authorities may indemnify the inspector providing they are satisfied the act complained of was within the powers of the inspector and that their duty as an inspector required or empowered them to do it.

16.2 This power becomes operative, "Where an action has been brought against an inspector in respect of an act done in the execution or purported execution of any of the relevant statutory provisions and the circumstances are such that he is not legally entitled to require the enforcing authority which appointed him to indemnify him....".

16.3 'Section 26 of the Health and Safety at Work etc. Act 1974 allows local authorities to indemnify inspectors appointed under that Act under specified circumstances.

It is the policy of this authority to indemnify inspectors appointed under that Act against the whole of any damages and costs or expenses which may be involved, if the authority is satisfied that the inspector honestly believed that the act complained of was within their powers and that their duty as an inspector entitled them to do it, providing the inspector was not wilfully acting against instructions.'

 

1.3 Where appropriate and, in accordance with the Code, the Council gives a commitment to provide "information" only, not necessarily copies of particular documents. For example, if someone requested a copy of a particular report, the Council will not be obliged to disclose the report itself but only the information in it, subject to the exemptions of the above Code and Regulations. Where we wish to disclose a requested document we can of course do so, subject to the exempted categories of information.

1.4 Subject to the exemptions of the Code and Regulations, the Council commits to volunteer the following categories of information:

• facts and analyses behind major policy decisions;

• guidance and internal instructions on how the Council deals with the public;

• information on the Council's aims, objectives, costs, standards of service, etc (most of this will be available in the Health & Safety Service plan and the other Council publications);

• reasons for administrative decisions to those affected at the time they are informed of the decision. However, there is no requirement under the Code to give reasons on why enforcement action was or was not taken in particular cases;

• the Code also commits the Council to provide to anyone on request information on its policies, actions and decisions and other matters related to its areas of responsibility. Such information will normally be provided within 20 working days of the request being received.

1.6 Exempted categories provide protection for most, if not all, of the information that the Council would not wish to make publicly available because disclosure might have an adverse affect on carrying out its functions. Examples are where disclosure would restrict our ability to take action appropriate to the circumstances, cause duty holders or others to withdraw their co-operation from us, or place an excessive call on our resources.

1.7 The exemptions are discretionary. However, the Council will not normally release information that comes within one or more of the exempted categories. The categories relevant to health and safety information are:

• information which would harm national security, defence or international relations;

• information that would harm the frankness and candour of internal discussion (including Council minutes, policy analysis and deliberation, communications with other public bodies);

• information which would prejudice law enforcement and legal proceedings or would harm public order or public security;

• information which could harm the management of the Council or the conduct of its operations;

• personnel records, public appointments, honours;

• vexatious requests which are manifestly unreasonable or formulated in too general a manner or would require an unreasonable diversion of resources;

• information about to be published;

• incomplete analysis, research or statistics or information held only for the purpose of research and statistics where the individual record will not be identified;

• information that would cause an unwarranted invasion of personal privacy;

• commercially confidential information;

• information given in confidence (i.e. under a statutory guarantee of confidentiality or where the supplier was not under a legal obligation (actual or implied) to supply it);

• information whose disclosure is prohibited by law.

1.9 The disclosure of much health and safety information held by the Council is subject to Section 28 of the Health and Safety at Work etc Act 1974. Section 28 controls disclosure of information to the public, to other Government Departments, local authorities, other regulatory authorities, the police, employees, safety representatives and for the purposes of legal proceedings.

1.10 In such respects, the Council recognises two types of information, which it may acquire and hold. These include 'relevant information' and/or information obtained by inspectors (and others) in exercise of their duties.

1.11 'Relevant information' is taken to mean information which must be notified to the Council under health and safety legislation (e.g. RIDDOR accident reports); or information given to the Council in pursuance of meeting some other statutory requirement (e.g. safety cases), or information which the Council has acquired under powers in Section 27(1) of the 1974 Act.

1.12 Further to the provisions of the Code, disclosure of 'relevant information' will only be made:

• with the consent of the persons providing it; or

• where disclosure to the public would be for the purpose of any function conferred on the Council by health and safety law; or

• in a form calculated to prevent the information from being identifiable with a particular person or case (i.e. aggregated information); or

• to other government departments, regulatory authorities, local authorities or the police; or

• for the purposes of legal proceedings.

1.13 Further to the provisions of the Code, disclosure of information acquired by inspectors in the course of their duties will only be released:

• for the purposes of an inspector's functions; or

• for the purposes of legal proceedings; or

• with the consent of the person who furnished the information or has responsibility for the premises where the information was obtained.

1.15 The Council (or an inspector) will obtain the consent of the suppliers of the requested information before it can be disclosed to a third party. If the suppliers consent, the information requested can be disclosed. If they do not consent, the information cannot be disclosed under Section 28(2) or 28(7)(c).

1.16 The Council is not permitted to take into account who has requested the information or the purpose for which they wish it. The Council must therefore seek a general consent to disclose and suppliers will not be given the opportunity to make their consent conditional on the identity of the enquirer or the enquirer's purposes.

1.18 In respect of disclosure of information, the functions of the Council may be summarised as securing the health, safety and welfare of persons at work and protecting third parties against risks to health and safety arising from work activities.

1.19 Information released for this function must be linked to these purposes. Thus information may be disclosed not only where disclosure would directly prevent risk but also where there is a need for an explanation of risks and hazards, and what actions the Council and others have taken to deal with such risks and hazards where such information is necessary to protect health and safety. An example would be to release the name and address of a hazardous site and information on the general nature of the hazard.

1.21 Information can be released where it is required for any legal proceedings. Excepting civil claims (see 'Civil Proceedings' below), it is the Council's practice to release information only when writs or summonses have been issued and pleadings closed. This allows the Council to identify the issues of the proceedings and to release information relevant to those issues.

1.23 The ability to disclose "relevant information" where individual persons or cases cannot be identified refers mainly to statistics or research where there has been an aggregation of information.

1.25 The Council recognises that Section 28 is not disapplied by the Code. Where Section 28 governs the disclosure of information held by the Council it will be taken into account in all cases where information is to be provided under the Code.

1.26 The Council also recognises that Section 28 allows disclosure of information in certain circumstances but does not require such disclosure. However, as the Code creates a presumption of disclosure, it is the Council's policy that, wherever Section 28 allows information to be disclosed, the Council will disclose it, subject to the exempted categories of information in the Code.

1.28 As Section 28 does not deal with information volunteered to the Council, information given to the Council by someone making a complaint or information acquired through voluntary participation will be released only with the consent, express or implied, of the person or persons who provided it. Accordingly, investigating officers will avoid revealing to any duty holder and/or their representative(s)or other third party that a complaint has been made, unless the complainant has agreed otherwise. Care is also to be taken when conducting an enquiry that the identity of the complainant is not revealed.

1.29 As Section 28 does not deal with information wholly created within the Council, where such information draws on information supplied to it under statutory powers, the Council will ensure its disclosure policy is maintained to the part which may be subject to it.

1.32 Under the provisions of the Environment and Safety Information Act 1988, information on improvement or prohibition notices having public safety or environmental implications must be placed on public registers. The Council's register entries include brief details of the breach of legislation and action required and normally consist of the first page of the notice(s).

1.33 Under the Code, the Council will also provide enquirers with information on any other notice it has served. The information normally provided in these circumstances will include the name and address of the premises, the date of the notice, the statutory breach and the date by which the breach must be remedied. Inspection of these registers is free of charge.

1.35 Requests for reports are covered by the Code and, where environmental information is involved, under the Environmental Information Regulations 1992. There is no right to have a copy of the report itself under the Code or the Regulations. However, in most cases the Council will provide information on the factual aspects of a report e.g. the name of the firm/individual, premises inspected, date of inspection, what was found, any breaches of health and safety legislation, any action required and the date by which it is required (see also 'Civil Proceedings' below).

1.37 Individuals who have suffered some loss, damage or personal injury due to a workplace activity can decide to sue the person(s) or organisation(s) responsible for compensation or recompense in the civil courts. In such cases, they may ask the Council to provide information to them or their (legal) representative(s), which we may hold or have obtained through the course of our investigations in to a health and safety, related matter.

1.38 It is Council policy to provide a statement of fact only on request of persons taking civil proceedings. This will be limited to the facts observed by an inspector during any associated investigation or regulatory contact together with copies of any photographs taken and will only be provided in accordance with our disclosure policy. There is a charge associated with this service and statements of fact will not be issued until the appropriate fee(s) have been paid in full.

1.39 Where the Council is taking legal action itself, disclosure of information for civil proceedings will be delayed until the Council's case has been determined. In some cases, for legal reasons, the Council will only disclose information if a court order is obtained.

1.40 The Council's inspectors do not usually take part in civil proceedings, although they will appear in civil courts if summonsed or subpoenaed to do so. In all such circumstances, inspectors will remain objective and impartial, irrespective of whether the evidence they give may prejudice a claimant's case. The Council will also expect and, as necessary, take action, to recover the full costs of the inspector's attendance at civil proceedings irrespective of whether a civil claim was successful or not.