Regulation of health and safety in the workplace: The role of prosecution as a regulatory instrument

Abstract

The Health and Safety at Work Act 2015 has been enacted and will come into force in April 2016. The purpose of the Act is to provide a balanced framework to secure the health and safety of workers and workplaces. The Act promotes the provision of information, guidance and education and also seeks to secure compliance through effective and appropriate compliance measure, including criminal prosecution. The deterrent effect of prosecution is likely to inhibit the parties’ willingness to engage in the open and transparent information sharing. This has the potential to create an unsatisfactory equilibrium in terms of achieving the regulatory goal where there is insufficient information and certainty to both comply with, and enforce, the legislation effectively. This can be addressed by the use of compliance and enforcement policies enabling regulators to take a strategic approach to the use of prosecution as a compliance tool and to signal when prosecution will be used, however the capacity for private prosecution adds an element of unpredictability for all parties.