What does criminal prosecution defence insurance cover?

Blogs 2 Jul 2021

Our legal experts from FSB Legal Protection scheme explain how a health and safety visit could impact your business and how additional protection as an FSB member gives you peace of mind.

Any business, no matter how small, could be subject to legal prosecution, and the costs of defending yourself can snowball and only add to the worries. Being served with an improvement notice or prohibition notice following a visit from Health and Safety can be daunting, but having legal guidance and protection on your side can make all the difference. 

Our legal experts walk through the issues that could surface, what the difference between an improvement notice and prohibition notice is, and what extra protection is available for FSB members.  

Why might a business get an enforcement notice or face prosecution? 

Whether you’re a manufacturer, work in the food industry, own a construction company or simply manage everyday health and safety concerns, failure to follow certain regulations can put your business at risk of fines, enforcement notices or prosecution. Not only can this be a financial drain on your business, it may also damage your reputation. 

Health and Safety at Work Act 1974

As a business owner, you must protect your workers, customers or others who visit your workplace from getting hurt or ill. There are also specific regulations you must follow if you work in certain sectors, for example construction or manufacturing. 

Consumer Protection Act 1987

If you manufacture goods, you must ensure they meet safety standards. Consumers can claim compensation if the product is defective and caused personal injury or damage to property.   

Food Safety Act 1990

If your business handles, prepares, stores or serves food, food safety is critical to protect consumer’s health. This environmental law means all businesses must meet food hygiene regulations. 

How could an enforcement notice affect your business? 

As part of health and safety regulations, the Health and Safety Executive carries out regular inspections to ensure all businesses are meeting requirements. If a health and safety inspector is of the opinion that you’re not following the law, they can issue an improvement or prohibition notice, with a period for compliance (usually at least 21 days). A regulator such as the Health and Safety Executive or a local authority may take action against you under criminal law if there is alleged harm or risk of harm.  

What is an improvement notice?

An improvement notice outlines what you’re doing that breaks health and safety law, as well as what you must to do correct it and why. 

What is a prohibition notice?

A prohibition notice is more serious than an improvement notice. It’s given to a business when the inspector believes that there is risk of injury or harm, and so all related activity specified in the notice must stop. The inspector will explain the reasons for this in the notice. 

I’ve been issued with an improvement notice. Can I appeal it? 

Yes, you can appeal, but this can get costly and it’s always best to have an expert on your side. As small businesses continue to follow COVID-19 guidelines to maintain safe workplaces, here is an example of how an FSB member, who wished to remain anonymous, was able to access legal advice, appeal an improvement notice and avoid reputational damage.  

What happened? 

I run a construction company and have been an FSB member for 2 years. I thought I was adhering to all the COVID-19 social distancing rules for my employees to be able to work in a safe environment during the pandemic. I was informed of a visit by the HSE and really wasn’t looking forward to it. Following the visit, I was issued with an Improvement Notice and had 21 days to respond. 

What did you do? 

I wasn’t sure whether this was something that FSB could help with so I called the legal claims line to enquire. I was very pleased to be told that I had cover for criminal prosecution defence to appeal an Improvement Notice. 

How did this impact your business? 

Without FSB’s help this could have caused me serious reputational damage to my business since the HSE maintains an online database of the issued improvement notices, and my name would have been published on that website. This could have resulted in difficulties in bidding and tendering for work in the future. 

There has been an accident in my workplace and I’m worried about Health and Safety prosecutions. What should I do? 

After you’ve registered a serious accident in your workplace, Health and Safety Executive may schedule a visit to take a statement as evidence in the event of any further legal action or investigations. Another FSB member shares their experience of giving a voluntary statement with the support of our legal team. 

What happened? 

One of my employees was involved in an accident with a drilling machine whilst working on our farm and broke his arm. It was registered as an accident and Health & Safety scheduled a visit to take a voluntary statement. As a business owner, I was worried about knowing what to do or saying the wrong thing.  

What did you do? 

I reached out to the legal advice line, and they guided me through it. I was so relieved that as a member I also have legal protection insurance that covers me for Health & Safety prosecutions if, after the voluntary statement, I receive a summons to court or am invited to an interview under caution. I have peace of mind knowing that FSB has my back in the likelihood that I am prosecuted. 

What extra protection is available for FSB members? 

Legal expenses insurance for criminal prosecution isn’t required by law, but it’s invaluable if the unexpected happens. If you find yourself appealing against an improvement notice under the Health and Safety at Work Act 1974, Consumer Protection Act 1987 or Food Safety Act 1990, cover is available for legal expenses for FSB members. This includes: 

  • defending a prosecution in a court of criminal jurisdiction 
  • representation at an interview under caution 
  • appealing an improvement or prohibition notice you’ve been issued with 

As an FSB member, you’ll have legal advice every step of the way and legal expenses insurance to help cover the costs – all included in your membership at no extra cost. Remember, you must contact the legal advice line before you act. 

Legal expenses insurance that doesn’t break the bank

Protect your business against the unexpected. FSB Legal Protection Scheme is designed just for small businesses and is backed by 24/7 legal advice, expert tax guidance and online support - all at no extra cost.

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Please note that this cover does not include speeding offences, persistent offenders, proven cases of fraud or theft, prosecution under the company or the director’s disqualification act.