Handwritten, immediate and deadly

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Handwritten, immediate and deadly
Prohibition notices can put you out of business, so assess the risks now before it's too late, warns Susan Dearden

Get issued with a prohibition notice and your business can be closed down immediately, so it's important to know what to do if one lands on your desk.

The power to issue prohibition notices lies with the Health and Safety Executive (HSE) or local authorities, and according to the latest HSE statistics, more and more of them are being doled out every year, with food and drink companies particularly at risk.

So my advice is to assess the risks you face now and take steps to protect your workforce and the public from avoidable risks to health and safety before it is too late.

A notice can be handwritten, served immediately and can have immediate effect. HSE guidance sets out when notices will be considered, including major incidents resulting from: serious infestation by vermin resulting in actual food contamination or a real risk of food contamination; serious risks of cross contaminations; and use of equipment involving high risk foods which has been inadequately cleaned or disinfected or which is obviously grossly contaminated and can no longer be properly cleaned.

The enforcement authorities only need a genuine and reasonable belief that, on the balance of probabilities, there is a significant risk to health and safety to have justification for serving the notice.

Because the test is subjective, it's difficult to appeal a notice. However it's not impossible. Somewhat bizarrely, appeals must be issued from the local Employment Tribunal, which has little experience in dealing with this type of appeal.

If you are served with a notice you should seek immediate legal advice from someone experienced in this area of law. The time limits for appeal are tight.

Consider asking the Employment Tribunal to suspend the notice pending determination of the appeal.

You should also ask the Tribunal to appoint an assessor who is familiar with your type of business.

Comply with the notice if it's not worth appealing, but be aware that it will form a public record against you if you don't successfully appeal it.

Businesses are often asked to disclose the existence of notices on tenders for work, so a notice that is not appealed can potentially continue to act to your detriment. Ignore the notice or refuse access to the inspector at your peril; it's a criminal offence.FM

Susan Dearden is safety, health and environment litigation partner at Wragge & Co LLP.

Contact: http://www.wragge.com

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