Dispensing Optics - ABDO

18 dispensingoptics July 2009
In Part 4 a comparison
between a large ophthalmic
manufacturing facility and a
small independent dispensing
optician was promised. By
using two separate scenarios,
Mike Hall provides an outline
of what could happen when
H & S measures break down
An inspector calls
Scenario 1
An accident has occurred at
‘Lenstastic Optics International,’ a
major player in the optical world with
several large manufacturing facilities
throughout the UK and abroad. In the
bulk storage area of the Preston plant,
a worker has been struck by a
reversing forklift truck and has
sustained serious crush injuries to his
lower torso and legs. An HSE inspector
comes on site and is met by the plant
manager. What happens now? What
does the plant manager do?
The first thing he should do is to cooperate
fully with the inspector. Being
truculent or obstructive will not help his
case, whereas a helpful attitude might
just aid the creation of a sensible
working environment. Additionally, he
should be aware that to contravene
any requirement made by the
inspector would constitute an offence.
In the case of a serious accident such
as this, it might be useful for him to
have the company legal advisor
present, or at least have them
manning a telephone to deal with
matters of law.
Inspectors have available to them a
number of options to deal with these
breaches of legislation and unsafe
situations such as:
Informal
• Simply ask for something to be put
right
• They may confirm their requirement
in a letter to the person in control.
Formal
• They may issue an Improvement
Notice (IN) if there is a breach of
legislation. Warning will be given of the
intention to issue an IN to give
employers an opportunity to put things
right. Once issued, an IN comes into
effect after 21 days inclusive of the
day of issue. During this period an
employer can appeal to an Industrial
Tribunal which has the effect of
suspending the notice until the appeal
is heard.
• If the inspector believes that there is
an immediate risk of serious injury to
personnel he may issue a Prohibition
Notice (PN). This requires the activity to
be put to an immediate stop -
machine(s) not to be used, area not
to be entered etc - until matters are
put right. It is an imprisonable offence
to contravene a PN and the 21 day
leeway does not apply.
• A deferred PN can be issued at the
inspector’s discretion, if the risk is not
immediate.
• The inspector may decide to
prosecute. This can be done instead
of, or as well as, any of the above
actions.
If prosecution is the chosen path,
minor breaches of H & S can be tried
summarily, in the Magistrates’ Court.
With a serious offence, such as the
accident at Lenstastic the HSE would
expect the magistrate to commit the
defendant for trial on indictment to
the Crown Court. The defendant
would also have been given the
opportunity to elect for trial before a
jury in the Crown Court of his own
volition. Magistrates have recently
been given more sentencing teeth;
where before 16 January 2009 they
had the power to impose fines of up
to £20,000 for breaches of Sections 2 -
6 of the Act but were restricted to a
maximum fine of £5000 for breaches of
any other sections and/or associated
H & S legislation, from 16 January 2009,
breaches of any section of the Act or
other delegated legislation will carry a
maximum fine of £20,000. Magistrates
are also now empowered to impose
up to twelve months imprisonment for