Businesses on the spot: COVID-secure inspections

In May 2020, the Prime Minster announced investment in the sum of £14 million into the Health and Safety Executive (HSE) to assist with the increase of ‘on the spot inspections’ to ensure business compliance with recommended ‘COVID-secure’ measures in the workplace.

There has been an apparent steady increase in ‘on the spot inspections’ across all business sectors over the last 12 months. Construction News reported that during the period 26 May 2020 to 18 June 2020, there were 1,055 proactive visits and calls across all business sectors. We anticipate that this trend will continue into 2021, especially as non-essential businesses slowly re-open with the easing of the national lockdown.

In this article, we consider what can be expected from an ‘on the spot inspection’, how businesses should prepare, and what happens if you are found to have no or inadequate ‘COVID-secure’ measures in place.

Regulatory authorities’ approach to ‘on the spot inspections’

Initial contact by a regulatory authority is likely to be over the telephone rather than in person. Businesses should expect to be questioned as to the ‘COVID-secure’ measures they have in place and be prepared to send supporting documentation electronically. We recommend that a designated person should be allocated the role of responding to such queries and any subsequent in-person inspection. If the outcome of the discussion is unsatisfactory or if a company fails to respond to a message left on behalf of one of the regulatory authorities, it is more likely than not that an in-person inspection will follow.

Third party agencies, in addition to HSE inspectors and Environmental Health Officers (EHO), have also been engaged by the HSE to undertake in-person ‘on the spot Inspections’ in relation to checking compliance with ‘COVID-secure’ measures. Businesses should co-operate with the third party agency workers as they would an HSE inspector or EHO.

We understand that during the course of the inspection itself the aforementioned are following a checklist and set questions to ascertain that appropriate ‘COVID-secure’ measures are in place and, importantly, being enforced.

Be prepared

As part of the inspection, businesses should be prepared to provide relevant documentation. This will include records evidencing training of staff in ‘COVID-secure’ measures, information provided to employees, any written procedures and processes to comply with relevant industry government guidelines and a COVID-19 risk assessment.

During the course of the inspection itself, particular consideration will be given to the implementation and adequacy of the numerous ‘COVID-secure’ measures that everybody is now familiar with, such as social distancing, handwashing and hygiene procedures, and ventilation.

Businesses should be aware that an HSE inspector or EHO during an ‘on the spot inspection’ will observe various work activities taking place and enforcement action could be taken in relation to both lack of ‘COVID-secure’ measures and/or any other unsafe practices identified.

Enforcement action

An inspector may provide advice and/or indicate areas for improvement, as well as stopping any practice or activity that is considered to be unsafe. Where, in the opinion of the inspector, there has been a breach of health and safety legislation, an Enforcement Notice or Notification of Contravention (NOC) may be issued with a view, if appropriate, to proceeding to further action, such as inviting a business to attend an interview under caution.

We have reviewed the available data to see the type of enforcement action being taken by the HSE in relation to COVID measures:

1. Where the HSE inspector is of the view that there has been a material breach of health and safety legislation, NOCs have been issued in reference to inadequate ‘COVID-secure’ measures found during an ‘on the spot inspection’. NOCs are not made publically available but based on our experience, we would expect this to be the preferred mode of enforcement action by the HSE. A NOC is usually the precursor to the HSE invoicing the recipient for the time the HSE has spent visiting and corresponding with them, under the Fee For Intervention scheme.
2. Improvement Notices (requiring a business to adopt remedial measures within a certain time period) as an enforcement measure appears to be a prevalent course of action by the regulatory authorities. Over 100 Improvement Notices related to COVID measures have been issued since May 2020. Areas of improvement referred to include the lack of hand sanitising stations, failure to maintain social distancing and sharing of work tools.
3. Only a handful of Prohibition Notices (immediately requiring a business to stop an activity unless remedial measures are adopted) have been issued to date, the narrative of which often makes reference to non-COVID related unsafe practices observed in the workplace during the inspection, in addition to failing to have ‘COVID-secure’ measures in place.

Comment

Business should be aware that the basis of Prohibition Notices, Improvement Notices and NOCs is often the inspectors’ opinion as to what they observed during an ‘on the spot inspection’. The HSE can refer to all three in the course of subsequent proceedings, and therefore they should be reviewed carefully and consideration given as to how best to respond and whether they should be appealed.

To date, we are not aware of any businesses that have been prosecuted for failing to have sufficient ‘COVID-secure’ measures in place. Businesses should not be left in any doubt however that this is a course of action that the regulatory authorities have made clear that they are prepared to take and over time we expect to see a number of prosecutions where regulators believe businesses have seriously flouted the rules.

Read other items in Health, Safety and Environment Brief - March 2021

Related item: ‘COVID-secure’ workplaces: taking all reasonably practicable measures