Sometimes it is difficult to understand why the HSE prosecute one company following an accident at work and don’t prosecute another company in similar circumstances. Is there any logic to these decisions or does it depend on the luck of the draw?

The HSE makes all prosecution decisions in line with their EPS (Enforcement Policy Statement) and Enforcement Management Model (EMM). The underlying principle is that enforcement action must be proportionate to the seriousness of the breach and the level of risk.

Two-stage prosecution test

The EPS requires the HSE to follow the same two-stage test as the CPS (Crown Prosecution Service) before bringing a prosecution, namely (1) the evidential test and (2) the public interest test.

Firstly, there must be sufficient evidence to provide a realistic prospect of conviction. They must consider what the defence case might be and how that affects the prosecution case. So, for example, in a fall from height case they must review the evidence of the steps the employer has taken to minimise the risks of falling from height and consider whether a jury might be persuaded that the employer took all such reasonably practicable steps.

If the case passes the evidential test stage then the HSE must then go on to consider the public interest test. They must balance factors for and against prosecution carefully and fairly.

There is a rebuttable presumption that it is in the public interest to prosecute if:

• there has been a death;
• there has been a failure to comply with an Improvement/Prohibition Notice (or a repetition of a breach of a formal caution);
• there has been reckless disregard of health and safety requirements;
• the duty-holder’s standard of managing health & safety has been found to be far below what is required and gives rise to significant risk;
• false information has been supplied wilfully, or with an intent to deceive; or
• inspectors have been intentionally obstructed.

There will usually be a prosecution unless there are public interest factors tending against prosecution which clearly outweigh those tending in favour. Factors tending against prosecution include the health of an individual (if the proposed defendant employer is an individual), the wishes of the injured party or the disproportionate impact of the prosecution on the defendant.

The EMM

The EMM provides a framework for making consistent enforcement decisions in line with HSE policy. Of course every case is unique and the EMM allows inspectors to exercise their discretion to reflect the complexities and nuances of each individual investigation. The EMM is used by the HSE inspectors to inform all decisions, not just prosecution but as a guide for all enforcement options.

The link gives a more detailed flowchart used by the HSE and an example of a fall from height case.

Conclusion

Although it is sometimes difficult to understand decisions made by the HSE there is clear guidance and a framework within which decisions are made. The HSE acknowledges that there are competing demands on the finite resources available and they recognise the balance which has to be struck between ongoing risk, potential outcomes and public expectations.

Whilst the EPS and EMM provide the framework for decisions to be made there will always be an element of discretion in the decision-making process to reflect the individual circumstances of every unique case.