Why are HSE prosecutions so difficult to defend? 

Arabella Dulcie and Sam Haldane are associates in the business crime and regulation team at law firm JMW Solicitors

The construction industry is arguably one of the most high-risk workplaces, susceptible to myriad health and safety concerns. This has been confirmed in the latest statistics published by the Health & Safety Executive (HSE), which show the construction industry has the unwanted record of having the most fatalities in the year 2024/25. Out of 124 reported workplace deaths, 35 (28 per cent) tragically occurred in construction. 

“The HSE is more likely to be swayed by evidence of increased investment in the prevention of accidents”

HSE prosecutions are difficult to defend. This is primarily because once the inspectorate has established that a risk to health and safety existed, the burden shifts to the defendant – the principal contractor – to prove that they did everything reasonably practicable to mitigate that risk. This is the reverse of what is typically seen in prosecutions brought by other bodies such as the Crown Prosecution Service and Serious Fraud Office. 

What is reasonably practicable will often depend on the size of the company and the resources it has for risk management. That doesn’t mean smaller companies have less responsibility or obligation to managing risk than those with greater resources, only that the test is applied proportionately.

Employer duties under the Health and Safety at Work Act are drafted in a way that means employers can delegate the performance of duties to others, but not responsibility for non-performance.

In construction, this would mean the principal contractor must ensure that all employees and subcontractors are properly advised on safety procedures, and conduct reasonable supervision and monitoring. Most importantly, the company must be able to evidence all of this to avoid prosecution in the event of an accident. 

Further, if an incident were to happen, HSE guidance makes clear that blaming an individual rather than a company recognising its own failings is an unattractive strategy and one that is unlikely to be successful.

The HSE also boasts extensive investigative powers that allow it to conduct site visits, demand evidence, take samples, compel individuals (including the employees involved) to provide information and interview them under caution, the cost of which can be charged to the company. 

Finally, the availability of defences is minimal. The defence of reasonable practicability is difficult to prove because companies must show that the effort or cost involved in implementing additional safety measures substantially outweighs the quantum of risk involved. The HSE is more likely to be swayed by evidence of remedial steps and increased investment in the prevention of accidents at work. 

Minimising risks

So what can be done to reduce the risks of enforcement by the HSE? First and foremost, responsible businesses must be able to evidence robust governance and senior-level engagement with compliance, and regularly review their safe-working systems and internal processes. 

A good health and safety culture starts at the top and is fed down to all employees. Communication is key, particularly given the number of people who work on a construction site on any given day and the different ways in which they are engaged. 

Third-party experts can help to avoid the consequences of non-compliance. The experience may also provide other benefits to your business, including an increase in employee engagement and satisfaction, a reputational boost as a responsible employer, and higher levels of compliance as clear processes take root. 

What is certain is that construction companies can expect ever-increasing levels of scrutiny – and that the present environment requires a dynamic approach to managing risk.