Civil Enforcement
Enforcement
HSA inspectors have a range of enforcement powers. They will generally be able to persuade employers to comply with their legal requirements, informally. They may threaten and undertake more formal action.
Inspectors may issue an improvement notice requiring changes and compliance. They may issue a prohibition notice prohibiting specified contraventions. They may issue an enforcement notice. An appeal can be taken to the District Court against an improvement or a prohibition notice.
The HAS may apply directly to the High Court for an injunction restraining the use of a workplace, pending rectification of breaches of health, safety and welfare legislation. The power is intended for use in the case of serious breaches which require urgent actions. An injunction may issue on short notice or no notice in an urgent case.
Improvement Plan I
An inspector can make a direction requiring submission of an improvement plan in respect of an activity presenting a risk. The improvement plan is required within one month and must be implemented. A copy must be given to the safety representative. The inspector must consider whether he is satisfied with the plan and may direct revisions.
An improvement notice may issue, where the inspector is of the opinion that the improvement plan is inadequate or there is a breach of its provisions. The improvement notice identifies the relevant legislation that is breached and directs the remedial steps which are required. It may be appealed to the District Court within 14 days, which may confirm, vary, or null the notice.
Improvement Plan II
Where an inspector is of the opinion that there is occurring or likely to occur any activity which involves or is likely to involve a risk to the safety, health or welfare of persons, he or she may give a written direction to the employer concerned requiring submission to him or her of an improvement plan.
The direction for an improvement plan shall—
- identify safety health and welfare at work activity which is or is likely to be a risk;
- require the submission to the inspector, within a period of one month, of specifying the remedial action proposed to be taken,
- include any other requirements that the inspector considers necessary.
Where there is a safety representative in a place of work in respect of which a direction is, the inspector shall give a copy of the direction to the safety representative.
Implementation
Within one month of receipt of the submitted plan, an inspector, by written notice to the person who submitted the plan—
- shall confirm whether or not he or she is satisfied that the plan is adequate, or
- may direct that the plan be revised as specified in the notice and resubmitted to the inspector within a period specified in the notice.
Within one month of receipt of a plan submitted pursuant to the above, an inspector shall confirm by written notice to the person who submitted the plan, whether or not he or she is satisfied that the plan is adequate. The notice, shall, where the inspector is satisfied with the plan, require the employer concerned to implement the plan. The person to whom a direction or a notice applies shall comply with the notice or direction.
HSA Improvement Notice I
An inspector who is of the opinion that a person—
- is contravening or has contravened any of safety health and welfare at work legislation, or
- has failed to comply with a direction given in relation to an improvement plan
- has submitted a plan in relation to which an inspector has confirmed by notice that he or she is not satisfied that the plan is adequate, or
- has failed to implement a plan,
may serve a written improvement notice on the person who has or may reasonably be presumed to have control over the work activity concerned.
HSA Improvement Notice II
An improvement notice shall—
- state that the inspector is of the above opinion
- state the reasons for that opinion,
- identify the relevant statutory provision in respect of which that opinion is held,
- direct the person to remedy the contravention or the matters occasioning that notice by a date specified in the notice that shall not be earlier than the end of the period within which an appeal may be made,
- include information regarding the making of an appeal,
- include any other requirement that the inspector considers appropriate, and
- be signed and dated by the inspector.
An improvement notice may include directions as to the measures to be taken to remedy any contravention or matter to which the notice relates or to otherwise comply with the notice.
Where there is a safety representative in a place of work in respect of which an improvement notice is served, the inspector shall give a copy of the improvement notice to the safety representative and inform the safety representative in writing where an improvement notice is withdrawn.
Compliance
A person on whom an improvement notice has been served who is of the opinion that the improvement notice has been complied with shall confirm in writing to the inspector that the matters referred to in the notice have been so remedied and shall give a copy of the confirmation to the safety representative if any.
Where a person on whom an improvement notice has been served confirms in writing to the inspector that the matters referred to in the improvement notice have been remedied, the inspector shall, on being satisfied that the matters have been so remedied, within one month of receipt of such confirmation, give written notice to the person concerned of compliance with the improvement notice.
Appeal to Court
A person aggrieved by an improvement notice may, within 14 days beginning on the day on which the notice is served on him or her, appeal in the prescribed manner against the notice to a judge of the District Court in the district court district in which the notice was served in the prescribed manner and, in determining the appeal the judge may, if he or she is satisfied that it is reasonable to do so, confirm, vary or cancel the notice.
A person who appeals shall at the same time notify the Authority of the appeal and the grounds for the appeal and the Authority shall be entitled to appear, be heard and adduce evidence on the hearing of the appeal.
Where an appeal is taken, and the notice is not cancelled, the notice shall take effect on the later of the day next following the day on which the notice is confirmed on appeal or the appeal is withdrawn, or the day specified in the notice.
Where there is no appeal, the notice shall take effect on the later of the end of the period for making an appeal or the day specified in the notice.
An inspector may withdraw an improvement notice at any time, or where no appeal is made extend the period for compliance.
HSA Prohibition Notice I
Where the inspector is of the view that an activity involves a risk of serious personal injury, he may serve a prohibition notice. This notice sets out the details of the breach and prohibits the activity specified until the risks are remedied. The notice may be appealed to District Court, but it continues to take effect, pending the appeal. The appeal can be made within seven days. The judge can vary, confirm, or cancel the notice.
A copy of the prohibition notice must be given to the safety representative. If a person who has been served with a notice is of the view that the notice has been complied with, they may advise the inspector of that opinion. The inspector will then consider whether the notice has been complied with and may withdraw the notice.
Where activities are conducted in breach of a notice, the HSA may apply to the High Court for an order prohibiting the activity.
Where the Authority considers that the risk to Health, Safety and Welfare is so serious that immediate action is required, it can make a one-sided application to the High Court to restrain and prohibit the activity or breach. Non-compliance be can enforced by committal to prison if the order is disobeyed.
HSA Prohibition Notice II
Where an inspector is of the opinion that at any place of work there is occurring, or is likely to occur any activity (whether by reference to any article or substance or otherwise) which involves or is likely to involve a risk of serious personal injury to any person, the inspector may serve a written prohibition notice on the person who has or who may reasonably be presumed to have control over safety health and welfare at work activity concerned.
A prohibition notice shall
- state that the inspector is of the above opinion;
- state the reasons for that opinion;
- specify safety health and welfare at work activity in respect of which that opinion is held,
- where in his or her opinion safety health and welfare at work activity involves a contravention, or likely contravention, of any of safety health and welfare at work legislation, specify the relevant statutory provision,
- prohibit the carrying on of safety health and welfare at work activity concerned until the matters which give rise or are likely to give rise to the risk are remedied, and
- be signed and dated by the inspector.
A prohibition notice may include directions as to the measures to be taken to remedy any contravention or matter to which the notice relates or to otherwise comply with the notice.
Where there is a safety representative in a place of work in respect of which a prohibition notice is served the inspector shall give a copy of the prohibition notice to the safety representative and inform the safety representative in writing where a prohibition notice is withdrawn.
Effect of Appeal
A prohibition notice shall take effect immediately the notice is received by the person on whom it is served, or where an appeal is taken, on the later of the day next following the day on which the notice is confirmed on appeal or the appeal is withdrawn or the day specified in the notice.
The bringing of an appeal against a prohibition notice which is to take effect shall not have the effect of suspending the operation of the notice. The appellant may apply to the court to have the operation of the notice suspended until the appeal is disposed of and, on such application, the court may, if it thinks proper to do so, direct that the operation of the notice be suspended until the appeal is disposed of.
Appeal
A person aggrieved by a prohibition notice may, within 7 days beginning on the day on which the notice is served on him or her, appeal in the prescribed manner against the notice to a judge of the District Court in the district court district in which the notice was served and in determining the appeal the judge may, if he or she is satisfied that it is reasonable to do so, confirm, vary or cancel the notice.
Where, on the hearing of an appeal, a prohibition notice is confirmed, the judge by whom the appeal is heard may, on the application of the appellant, suspend the operation of the notice for such period as in the circumstances of the case the judge considers appropriate.
A person who appeals or applies for a direction suspending the application of a prohibition notice shall at the same time notify the Authority of the appeal or the application and the grounds for the appeal or the application. The Authority shall be entitled to appear, be heard and adduce evidence on the hearing of the appeal or the application.
Compliance
A person on whom a prohibition notice has been served who is of the opinion that the matters referred to in the notice have been remedied by the date specified in the notice shall confirm in writing to the inspector that those matters have been so remedied and shall give a copy of the confirmation to the safety representative, if any.
Where a person on whom a prohibition notice has been served confirms in writing to the inspector that the matters referred to in the prohibition notice have been remedied, the inspector shall, on being satisfied that the matters have been so remedied, within one month of receipt of such confirmation, give written notice to the person concerned of compliance with the prohibition notice.
An inspector may at any time withdraw a prohibition notice by written notice to the person on whom it was served where
- the inspector is satisfied that safety health and welfare at work activity to which the notice relates no longer involves a risk of serious personal injury to any person, or
- the inspector is satisfied that the notice was issued in error or is incorrect in some material respect.
Enforcement Of Notices
Where a prohibition notice has been served, and activities are carried on in contravention of the notice, the High Court may, on the application of an inspector, by order prohibit the continuance of safety health and welfare at work activities.
An application to the High Court for an order may be on a unilateral application. The Court, when considering the matter, may make such interim or interlocutory order (if any) as it considers appropriate. The order by which an application is determined may contain such terms and conditions (if any) regarding the payment of costs that the Court considers appropriate.
Where an improvement notice or a prohibition notice is served, the person to whom it is addressed shall on receipt of the notice bring the notice to the attention of any person whose work is affected by the notice. He shall display the notice or a copy of the notice in a prominent place at or near any place of work, article or substance affected by the notice.
Order of High Court
Where the Authority considers that the risk to the safety, health or welfare of persons is so serious that the use of a place of work or part of a place of work should be restricted or immediately prohibited until specified measures have been taken to reduce the risk to a reasonable level, the Authority may apply, on a unilateral application to the High Court for an order restricting or prohibiting the use of the place of work or part of a place of work accordingly.
The Court may make any interim or interlocutory order that it considers appropriate. Any order made by the Court shall have effect notwithstanding the terms of any permission given under any other enactment for the use of the place of work or part of the place of work to which the application relates.
On an application by any person for the revocation or variation of an order, the Authority shall be entitled to be heard.
References and Sources
Irish Books
Safety, Health and Welfare and at Work Law in Ireland 2nd Ed 2008 Byrne Ch 3
Safety & Health Acts Consolidated & Annotated 2013 Byrne
Health, Safety & Welfare Law in Ireland 2012 Kinsella
Health & Safety: Law and practice 2007 Shannon
Health & Safety at Work 1998 Stranks
Civil Liability for Industrial Accidents 1993 While
Websites
The Health and Safety Authority www.hsa.ie
Health and Safety Executive (UK) www.hse.gov.uk
UK Books
Tolleys Health and safety at work, 2017 29th ed Bamber,
Corporate liability: work related deaths and criminal prosecutions 3rd ed. Forlin
Health and safety at work: European and comparative perspective Ales.
Health and Safety Law 5th Ed 2005 Stranks
Principles of Health and Safety at Work (8th ed) Holt, Allan St. John; Allen, Jim;
The Law of Health and Safety at Work 2014/15 (23rd ed) Moore, Rachel; Winter, Hazel;
Statutes
Safety, Health and Welfare at Work Act 2005
Safety, Health and Welfare at Work (General Application) (Amendment) (No. 3) Regulations 2016 (S.I. No. 370 of 2016)
Safety, Health and Welfare at Work (General Application) (Amendment) (No. 2) Regulations 2016 (S.I. No. 70 of 2016)
Safety, Health and Welfare at Work (General Application) (Amendment) Regulations 2016 (S.I. No. 36 of 2016)
Safety, Health and Welfare at Work (General Application) (Amendment) Regulations 2012 (S.I. No. 445 of 2012)
Safety, Health and Welfare at Work (General Application) (Amendment) Regulations 2010 (S.I. No. 176 of 2010)
Safety, Health and Welfare at Work (General Application) (Amendment) Regulations 2007 (S.I. No. 732 of 2007)
Safety, Health and Welfare at Work (General Application) Regulations 2007 (S.I. No. 299 of 2007)