OPERATIONAL GUIDANCE (OG) LAYOUT Appendices Appendix 1:

OPERATIONAL GUIDANCE (OG) LAYOUT
Appendices
Appendix 1:
Table of duties, powers, offences and penalties
ELCI Act
1969
s. 1
ELCI
Regulations
1998 – as
amended
s. 4(2)(a)
s. 4(2)(b)
s. 4(2)(b)
reg. 5 – as
reg. 6 – as
amended by
amended by
2008
2008
Amendment
Amendment
Regulations
Regulations
Produce or
Employers’
duties
To have
Display
Produce
send certificate
insurance
certificate
certificate
on receipt of
(para 16)
(para 17(1))
(para 17(3)) notice para
17(4))
Demand
production
Powers
of
of inspector
certificate
(para 22(1))
s. 4(2)(c)
s. 5
reg. 7
Permit policy
to be
inspected
(para 17(5))
To require by
To inspect
notice that
policy after
a certificate be
giving notice
sent (para 23)
(para 22(2)
Powers of
other
- ditto -
officers of
(para 22)
HSE
Failure to
Offences by
employer
display
current
certificate
(para 32(1))
Failure to
Failure to
produce and
produce
send
certificate
certificate after
(para 32(2)) receipt of notice
(para 32(3))
Failure to
permit policy
Not being
to be
insured (para
inspected
33)
(para 32(4))
OPERATIONAL GUIDANCE (OG) LAYOUT
Lack
of insurance
due to
Offences by
neglect,
director, etc
consent or
connivance of
director, etc
(para 36)
Penalties
Level 3
Level 3
Level 3
Level 3
Level 4
OPERATIONAL GUIDANCE (OG) LAYOUT
Appendix 2:
Specimen letter for first enquiry of employer (this letter may be used by all
except OSD)
Dear
Employers’ Liability (Compulsory Insurance) Act 1969
I am an inspector authorised under section 4(2)(b) of the Employers’ Liability (Compulsory Insurance)
Act 1969. Under the Act you, (if you are an employer - there are some exemptions), must take out
and maintain an approved insurance policy against liability for bodily injury or disease sustained by
your employees in the course of their employment. You must also display one or more copies of the
certificate of insurance at each place of business at which you employ.
I have the power to inspect your policy or require production of the certificate of insurance. However,
in order to demonstrate compliance, it would be helpful if you would voluntarily send me a copy of
your current insurance certificate or state the reason why you do not have a policy and certificate.
Your response should be sent to me at the address shown on this letter.
If you fail to reply voluntarily by the [DATE], you will receive a formal notice to produce and or a visit to
inspect your policy of insurance at your place of business.
The enclosed information leaflets explain the requirements of the Act and associated regulations. If
you are in any doubt about the contents of this letter or what you must do to comply please contact
me by phone and I will be happy to explain.
Yours
Enclosures: HSE 40 ELCI - Guide for Employers
HSE 39 ELCI – Workers
OPERATIONAL GUIDANCE (OG) LAYOUT
Appendix 2a:
Specimen letter for first enquiry of employer (for Offshore Division use)
Dear
Employers' Liability (Compulsory Insurance) Act 1969
I am an Inspector authorised under section 4(2)(b) of the Employers' Liability (Compulsory Insurance)
Act 1969. Under the Act you, (if you are an employer - there are some exemptions), must take out
and maintain an approved insurance policy against liability for bodily injury or disease sustained by
your employees in the course of their employment.
I have the power to inspect your policy or require production of the certificate of insurance. However,
in order to demonstrate compliance, it would be helpful if you would voluntarily send me a copy of
your current insurance certificate or state the reason why you do not have a policy and certificate.
Your response should be sent to me at the address shown on this letter.
If you fail to reply voluntarily by the [DATE], you will receive a formal notice to produce and/or a visit to
inspect your policy of insurance at your place of business.
The enclosed information leaflets explain the requirements of the Act and associated Regulations. If
you are in any doubt about the contents of this letter or what you must do to comply please contact
me by phone and I will be happy to explain.
Yours
Enclosures: HSE 40 ELCI - Guide for Employers
HSE 39 ELCI - Guide for Workers
OPERATIONAL GUIDANCE (OG) LAYOUT
Appendix 3:
Specimen letter when employer has not responded to first letter
Dear
Employers’ Liability (Compulsory Insurance) Act 1969
The Employers’ Liability (Compulsory Insurance) Regulations 1998(S.I.1998 No. 2573)
I have received no reply to my letter dated [DATE] requesting you to forward a copy of your current
Certificate of Employers’ Liability Insurance.
As there has been no response, I am now serving you with a written notice in accordance with
Regulation 6 of The Employers’ Liability (Compulsory Insurance) Regulations 1998. This requires you
to produce or send to the person specified in the notice, at the address and within the time specified
in the notice either the original or a copy of your current Certificate of insurance. The notice is
enclosed.
Failure to comply with this requirement is an offence, punishable on summary conviction by a fine.
If you wish to discuss please telephone me on the number above.
Yours
OPERATIONAL GUIDANCE (OG) LAYOUT
Appendix 3a:
ELCI specimen notice to produce
Specimen Notice to Produce
To:
I, being a duly authorised inspector for the purposes of the Employers’ Liability (Compulsory
Insurance) Act 1969 and entitled to issue this notice in accordance with powers granted in Section
4(2)(b) of the Act and in Regulation 6 of the Employers’ Liability (Compulsory Insurance) Regulations
1998, require you to produce or send to me either the original or a copy of your current certificate of
insurance.
The Certificate of Insurance (or a copy) should be sent or produced to me by at the following address:
Health & Safety Executive
If the original Certificate is sent or produced it will be returned after inspection.
Signature:
Date:
OPERATIONAL GUIDANCE (OG) LAYOUT
Appendix 4:
Evidence for ELCI prosecution
Employment
It is essential to be able to prove that one or more persons was employed. The law on employment is
somewhat complex, as several matters may be relevant, although none is conclusive. There is no
single test for determining whether or not a person is an employee. The courts have developed over a
number of years several tests to ascertain an individual’s employment status, some of which are listed
below. However, none of these factors is conclusive by itself and each case will need to be
considered on its own facts. There has been much case law in this area which illustrates the
application of these principles in individual cases (see, for example, Lane v. Shire Roofing Company
(Oxford) Limited [1995] IRLR 493 which can be found in the Decided Cases Index; Ironmonger v.
Morefield Ltd [1988] IRLR 461; and Wickens v. Champion Employment [1984] ICR 365). Where
possible, therefore, an employee's statement should cover at least the following points:
•
whether the alleged employer exercises control over the employee's work;
•
whether the employee works for anybody other than the alleged employer;
•
basis of payment - hourly, daily or a fixed price for particular jobs;
•
whether the employee is required to commence and finish work at set times and work on set days,
and what arrangements are made for overtime payment, holidays, etc;
•
whether the employee is required to provide any of the equipment or materials with which he or
she works;
•
whether the employee is required to make any payment to the employer for use of equipment, or
material or premises; and
•
whether the employer deducts national insurance and income tax.
If there is any doubt whether a contract is of service or for services, the papers should, in England
and Wales, be referred to Legal Adviser via Directorate HQ. In Scotland, the matter should be
discussed with the Procurator Fiscal.
Absence of insurance
Evidence on this point cannot readily be obtained without interviewing a director or other senior
member of management. In view of the possible liability under s.5, a statement should not be taken
from such a person unless cautioned in accordance with the Police and Criminal Evidence Act 1984
Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers. A
careful note should be made of answers to questions such as whether there is a certificate of
insurance and whether there is a policy. A record of the interview is admissible as part of the
inspector's own evidence (Edwards v Brookes (Milk) Limited (1963) 3 ALL ER 62). Compliance with
the PACE CoP during such an interview should be as complete as circumstances allow. Note that
PACE does not apply in Scotland - see Enforcement Guide (Scotland)[1] for procedures to be used in
Scotland.
It is a question of fact whether a director or manager is personally responsible for insurance. If the
management structure clearly allocates the duty to one person, it is arguable that other directors, etc.
would incur liability for a contravention only if they knew of it, or had a clear duty to supervise the
other person. When a director, etc. admits that there is no insurance, and appears to have personal
responsibility, there is prima facie evidence of an offence by that person. They should at that stage be
OPERATIONAL GUIDANCE (OG) LAYOUT
cautioned, and if they wish to make any further statement, this should be taken down in writing in
accordance with the PACE CoP.
In dealing with a complaint that an employer was not insured at the time of an accident, the inspector
may be shown a certificate commencing on a date subsequent to the accident. Prior to the 2008
Amendment Regulations, Inspectors were entitled to see all certificates issued under ELCI
Regulations 1998 (and the one issued under the 1971 Regulations which was in force on 31
December 1998), but this is no longer the case.(See para 10 in the main OC).
Although employee witnesses should be asked to include in their statements whether they have seen
a certificate of insurance displayed, it would be unwise to rely on such evidence alone without seeking
the comments of the employer, director or manager; the employee's recollection could be at fault.
Names of policyholders on certificates
Instances may arise where certificates of insurance under the above Act are on display which refer to
'associated' or 'subsidiary companies' and not to the specific employer as the policyholder. The use of
this form of words was accepted by DE in 1973 in an administrative agreement with the Association of
British Insurers (ABI), provided that the contract between the parent and subsidiary could be
established. The Legal Adviser has advised that if the parent company is the policyholder then that
company alone may be named on the certificate; this is without prejudice to the individual employer's
duty to insure. In cases of complaint the employer should be asked to help resolve the question by
applying for a special certificate which names both companies. Cases of serious doubt should be
referred to your Directorate HQ.
Authorisation
In defended cases, it may be necessary to prove that the inspector was authorised by the Secretary
of State, and was therefore entitled to ask to see the certificate, policy, etc. This would be proved by
production of an instrument of appointment and the inspector's own evidence.
Documentation
Where, exceptionally, proceedings are brought under s.4, the employer should be served with a
'Notice to Produce'; the notice requiring the certificate to be sent, or the letter giving notice of the
inspector's intention to inspect the policy. The 'Notice to Produce' would entitle the inspector to put
copy documents in evidence if the employer failed to produce the originals.
OPERATIONAL GUIDANCE (OG) LAYOUT
Appendix 5:
ELCI Act s.5 - ‘Employer not insured on any day’ - laying ELCI Informations
The result of an appeal case heard on 18 July 2001 has highlighted the need for us to consider how
we interpret s.5 - ‘Employer not insured on any day’ and how to lay ELCI informations to benefit from
the £2500 maximum penalty (level 4) for lack of ELCI cover.
In the original case, one information alleging a continuing offence of no ELCI cover, was laid against
Colvic Industrial Services and its 3 sister companies. We had construed s.5 as imposing a penalty for
each day that there was no ELCI cover; the Court agreed and the 4 companies were each fined a
total of £4000 (i.e. £500 per day for a continuing period of 8 days).
The Appeal Court reduced the fines to £500 per company, based on one information alleging a
continuing offence per company, and a maximum £2500 penalty per offence.
The solicitor agent involved in the case advised that in future we may wish to consider laying
informations for separate days when there was no cover, in order to benefit from the maximum
penalty for each day. He cautioned against laying a separate information for every day without cover
as this would be oppressive, but suggested the first and last day if cover was absent for a short
period, or a range of dates for longer periods. Legal Advisers Office has reiterated the caution, and
suggested a few more charges than just the first and last day.
Exemptions
2 S.42 (Legal Professional Privilege)
3 S.31 (Law Enforcement)
OPERATIONAL GUIDANCE (OG) LAYOUT
Appendix 6:
Draft information
In the County of [COUNTY]
Local Justice Area of [NAME OF COURT JURISDICTION]
The Information of [NAME OF INSPECTOR]
one of HM Inspectors authorised by the Health and Safety Executive for the purposes of the Employers'
Liability (Compulsory Insurance) Act 1969, who states that [NAME OF EMPLOYER] of [ADDRESS OF
COMPANY - (registered office if applicable, otherwise, normal place of business).]
on the [DAY]
day of [MONTH]
20 [YEAR]
at [PLACE OF OFFENCE]
in the County of [NAME OF COUNTY]
being an employer, he/she/it failed to comply with the requirement imposed by section 1(1) of the
Employers’ Liability (Compulsory Insurance) Act 1969 (“the Act”) in that, as an employer carrying on
business in Great Britain, namely [describe the business], he/she/it failed to [insure/maintain
insurance] under one or more approved policies with an authorised insurer or insurers, against liability
for bodily injury or disease sustained by his/her/its employees arising out of and in the course of their
employment in Great Britain in that business, whereby he/she/it is guilty of an offence contrary to
section 5 of the Act and liable to a penalty as provided by section 5 of the Act.
Exemptions
3 S.31 (Law Enforcement
OPERATIONAL GUIDANCE (OG) LAYOUT
Appendix 7:
Definitions
Definitions are as follows:
•
Approved policy' - s.1 (3)(a). HSE does not 'approve' policies; the only effect of the word 'approved'
is to invalidate for the purposes of the Act any policy with prohibited conditions that would enable
the insurer to escape liability. For prohibited conditions, see ELCI Regulations 1998 reg.2
•
Legal Adviser has advised that policy clauses stating that cover is ‘deemed to comply’ with the
requirements of ELCI cannot render ‘approved’ a policy that contains prohibited conditions.
•
‘Authorised insurer' - s.1 (3)(b). HSE does not 'authorise' insurers. The definition is by reference to
the Financial Services and Markets Act 2000. The Financial Services Authority (FSA) maintains a
register of authorised insurers. You can check whether a company is authorised by searching their
register on http://www.fsa.gov.uk/, or telephoning the FSA on 020 7066 1000.
•
‘Amount of insurance’. Minimum £5 million pounds in respect of claims arising out of any one
occurrence (1998 Regulations, reg.3).
•
’Certificate of insurance’. For prescribed form, see 1998 Regulations reg.4(1) and Schedule 1.
OPERATIONAL GUIDANCE (OG) LAYOUT
Appendix 8:
Reasonable access – advice from DWP
DWP has provided advice from one of their legal advisers who explained that the words ‘reasonable
access’ are intended to be read broadly, and that a court would be expected to interpret the term in
this context. As each workplace is different, what is reasonable access in one workplace may not
necessarily be reasonable in another workplace. All of the circumstances should be taken into
account. On a practical level, it is about common sense. An employer should seek to comply with the
Regulations by granting reasonable access to its employees in the context of the particular workplace.
For example:
•
in a workplace where employees are using workstations, they would presumably have access to
an intranet site or directory where an electronic copy of the certificate is displayed. An employer's
duty in those circumstances is to ensure the certificate is available for viewing and ensuring that
employees know that it is there.
•
in a workplace where employees do not have access to a computer as part of their job, if an
employer chooses to make a certificate available in electronic form then they must also ensure that
there is a computer that employees can reasonably access for the purposes of viewing the
certificate.
•
in a workplace with multiple sites, it would not be reasonable access if a computer was not
provided on each site.
•
in a workplace with thousands of employees, one computer would likely not be enough.
OPERATIONAL GUIDANCE (OG) LAYOUT
Appendix 9:
Duties of employer
With certain specified exceptions, an employer carrying on business in Great Britain is required to
insure against liability for injury or disease to any employee, arising out of and in the course of his/her
employment in Great Britain in that business (ELCI Act 1969 s.1 (1)). (This does not give an
automatic right to damages. For an employee to qualify there must be evidence that the injury or
disease was due to some fault on the part of the employer. Cases where injury was due to the
negligence of a fellow employee acting in the course of his/her employment would be covered, but
negligence of a third party, e.g. an independent contractor, would not be covered).
The employer is also required:
•
to display copies of the certificate of insurance at the place or places of business (s.4(2)(a)
and the 2008 Amendment Regulations reg.2(3));
•
in the case of an offshore installation or associated structure, para (1) above does not apply
but the employer of relevant offshore employees is required to produce a copy of the relevant
certificate of insurance on request from their employee within 10 days (1998 Regulations
reg.5(4));
•
to produce the certificate or a copy, on demand, to any inspector duly authorised by the
Secretary of State (s.4(2)(b));
•
on being served with a notice on behalf of HSE, to produce or send to the officer specified in
the notice, the certificate of insurance, or a copy (s.4(2)(b), and 1998 Regulations reg.6). This
applies to current certificates only (reg.6(a)). Certificates are normally valid for 12 months
only; and
•
permit the policy, or a copy, to be inspected by an authorised inspector at the firm's registered
office or place of business, at such reasonable time as the inspector may require (s.4(2)(c)
and 1998 Regulations reg.7).
OPERATIONAL GUIDANCE (OG) LAYOUT
Appendix 10:
Powers of inspectors
Inspectors duly appointed under ELCI Act have limited specific powers. These are to:
•
demand by written notice (see para 23 below) the production of a current certificate of insurance or
a copy (s.4(2)(b), 1998 Regulations reg.6 and 2008 Amendment Regulations reg. 2(4)).
•
inspect an insurance policy or copy at such reasonable time as the inspector may require (s.4(2)(c)
and ELCI Regulations 1998 reg.7);
The demand for production of a certificate of insurance is made by serving the employer with a notice
requiring them to send the certificate of insurance, or a copy, to an officer of HSE. Specimen letters
and Notice to Produce are at Appendices 2, 2A, 3, and 3A).
Inspectors should give the employer reasonable notice that they wish to inspect the policy. There is
no specific power to enter premises or to require any person to make a statement (as in HSW Act).
In England and Wales, Form LP70 not Form LP7 should be used for taking statements of employee
witnesses. In Scotland, Form LPS9 should be used to record the statement (Enforcement Guide
(Scotland) - Statements that are not compelled[17])’
OPERATIONAL GUIDANCE (OG) LAYOUT
Appendix 11:
Offences and Penalties
Section 4 offences
It is an offence to fail to:
•
display certificate or copy (s.4(2)(a));
•
produce certificate or copy to inspector duly authorised (s.4(2)(b));
•
produce or send certificate or copy after service of notice (s.4(2)(b)); and
•
permit the policy or copy to be inspected (s.4(2)(c)).
The penalty for all s.4 offences on summary conviction is at 'level 3'.
Section 5 offences
Employer not insured on any day - s.5. This offence may be committed by the employer never having
insured, or by 'not maintaining' insurance, i.e. allowing it to lapse. Penalty on summary conviction is at
‘level 4’ (see para 35 and Appendix 5 [21]). See paras 36 to 38 regarding offences under s.5 by a
director or manager.
For the most part the commission of an offence under s.5 precludes any offence under s.4, since
duties under that section arise only during the currency of the insurance. The one exception is where
an employer continues to display a certificate after it has expired or after the policy has been
cancelled (s. 4(2)(a) and ELCI Regulations 1998, reg.5 (3)).
Penalties
Penalties are prescribed by ss.4(3) and 5, as amended by the Criminal Justice Act (CJA) 1982, ss.37
and 46, as amended by CJA 1991, s.17 (1). The fines are fixed by reference to a ‘standard scale’.
The scale has 5 levels, each corresponding to a certain amount. This means that the level of fines
can be updated by changing the value of each level, without the need to amend the legislation relating
to each separate offence. The current values of the standard scale (which can be found in Archbold or
the inside front cover of Stones) are maximum fines of £1,000 (level 3 on the standard scale) in
respect of s.4 offences, and £2,500 (level 4 on the standard scale) in respect of s.5 offences. These
offences are triable only summarily.