New enforcement powers regarding personal protective equipment (PPE)

New regulations came into force on 15 May 2002 to give Trading Standards Officers (TSOs) new powers to take enforcement action or prosecute manufacturers and suppliers of non-compliant PPE. The new provisions will make it more important for anyone involved in the supply of PPE to ensure procedures are in place to comply with the legislation in all respects and to deal with TSOs effectively, especially in the light of new powers for TSOs and duties for consumer product suppliers to be put in place before 15 January 2004 by the revised General Product Safety Directive 2001/95/EC.

These new regulations change the rather anomalous situation whereby the UK legislation implementing the 1989 European PPE Directive 89/686/EEC did not include provisions for its enforcement. TSOs will probably work co-operatively with Health and Safety Executive (HSE) inspectors who enforce the workplace health and safety legislation if non-compliant PPE is found in the workplace. It is a possibility that TSOs will go down the same route as the HSE and publicise the enforcement actions they take on the Internet.

Directive 89/686/EEC is currently under review at European level along with many other “New Approach Directives and a general review of the “New Approach itself.

Duties

· Manufacturers or their authorised representative established in the Community must ensure that for any PPE they place on the market:

- The PPE satisfies the basic health and safety requirements;

- The appropriate conformity assessment procedure has been carried out;

- The CE Marking has been affixed to the PPE; and

- The PPE does not compromise the safety of individuals, domestic animals or property when properly maintained and used for its intended purpose.

Where neither the manufacturer nor the authorised representative are established in the Community, the duty to ensure that PPE is not placed on the market unless the above duties are carried out falls on the person placing the PPE on the market as does the duty to keep technical documentation if required by the appropriate conformity assessment procedure.

· No person shall supply PPE unless that PPE is safe (supply includes the supply by a manufacturer for his own use and the bringing into service in the course of a business of PPE imported from outside the Community for one’s own use).

Offences and penalties

It is an offence to breach the above duties or to contravene a Prohibition Notice, Suspension Notice, Notice to Warn, or a notice to furnish information (see “Enforcement powers below). Penalties are up to 3 months imprisonment and/or a fine of up to level 5 on the standard scale (currently £5000) on summary conviction. The penalty for failing to comply with a notice to furnish information, obstructing or failing to comply with any requirements of an enforcement officer, or failing to assist or provide information as required by an enforcement officer is a fine up to level 5 (currently £5000), and for recklessly or knowingly furnishing false information in response to such a notice or to an enforcement officer, the penalty is a fine (unlimited) on conviction on indictment (in the Crown Court) or a fine up to the statutory maximum (currently £20,000) on summary conviction (in the Magistrates Court).

Enforcement powers

· Test purchases.

· Powers of search and seizure: power to conduct searches, order the opening of any container, and seize goods or records.

· Power of customs officer to detain goods: imported PPE can be detained for up to two working days.

· Power of Secretary of State to obtain information: issue of a notice requiring the recipient to furnish specified information to assist in deciding whether to make, vary or revoke safety regulations or a prohibition notice or whether to serve or revoke a notice to warn.

· Non-compliance notices: notice that the officer suspects non-compliance, in what respects, requiring the bringing of the PPE into conformity or provision of evidence of compliance within a certain specified period, and a warning that continued non-compliance or non-provision of evidence of compliance may result in further action being taken.

· Power of Secretary of State to issue a Prohibition Notice: prohibiting the supply (or offering to, agreeing to, exposing for or possessing for supply) of unsafe PPE.

· Issue Suspension Notices: prohibiting the supply (or offering to, agreeing to, exposing for or possessing for supply) of PPE for up to six months where there are reasonable grounds to suspect that any safety provision has been contravened in relation to the PPE.

· Issue Notices to Warn: requiring the recipient of the Notice at his own expense to publish a warning about unsafe PPE as specified in the Notice.

· Apply to the Court for an order for the forfeiture of PPE on the grounds that there has been a contravention of a safety provision (in Scotland the procurator-fiscal makes this application).

· Prosecution (and the Court can order the defendant to pay the connected enforcement expenses).

Defences

The defence of due diligence is available and provision made for liability of persons other than the principal offender, including directors, managers and other similar officers where the offence was committed by a body corporate with their consent, connivance or attributable to their neglect.

Supplier protection measures

There are provisions for the protection of manufacturers and suppliers in relation to some of the powers, for example, appeals and compensation for wrongfully issued Suspension Notices.

The so-called safeguard clause common to European “New Approach Directives has been implemented by means of Schedule 10 and requires the enforcement authority to inform the Secretary of State for the Secretary of State to inform the European Commission where it has taken action to prohibit or restrict the placing on the market of any product to which the regulations apply. This triggering of the safeguard clause commences a procedure of consultation between the Commission and interested parties, the outcome of which could be that the Commission decides that the UK enforcement measure was not justified. From our recent experience there is now doubt as to how much protection this clause gives a supplier if the supplier is of the opinion that the enforcement action is not justified, eg because the PPE is safe, because there is debate and uncertainty as to which enforcement actions ought to trigger this clause.

Rights when powers to obtain information and evidence are exercised

The following limits apply to the enforcement powers:

· Enforcement officers cannot require the production of records that could be subject to legal professional privilege in court proceedings.

· No-one can be required to answer questions or give information that would incriminate that person or his/her spouse (of limited use for companies because the information may then be obtained from other individuals or sources).

· The Police and Criminal Evidence Act 1984 and its Codes of Practice will apply and the enforcement officers need to adhere to their requirements, eg a person must be given a caution and an accurate interview record must be made.

It would be prudent to seek legal advice before agreeing to an interview under caution and as to which documents may be protected under the rules on legal professional privilege. It may be advisable to consult legal experts as soon as a potential problem arises, even if it has not yet come to the attention of enforcers, especially in these times where consumers are more ready than in former times to make complaints to TSOs.

For further details please contact Natalie Wood at [email protected] or on +44(0)20 7367 2523 or contact Mark Tyler at [email protected] or on +44(0)20 7367 2568.