Health and safety update

In January 2014, the Triennial Review Report – an independent review of the function, form and governance of the HSE, led by the chair
of the UK manufacturers’ organisation EEF
Martin Temple – found that the following five functions of the HSE remain necessary:
n functions under the Health and Safety
at Work Act 1974;

• standard setting and making regulations;
• enforcement;
• research; and
• guidance and ministerial advice.

It is the third major review of health and safety legislation since the coalition government came
to power. In spite of the government’s desire to diminish health and safety legislation and the vast cuts it has imposed on the Health and Safety Executive’s funding, the report concluded that the HSE has stood the test of time, is working effectively to support health and safety in the workplace and should have extra funding.

The review recommended exploring options
for further HSE commercialisation, the need to
find innovative ideas for intervention to reduce work-related ill health and the need to shorten
the time taken to complete investigations.

Dangerous model

While the Fee for Intervention (FFI) scheme,
which was introduced on 1 October 2012 under the Health and Safety (Fees) Regulations 2012, was not within the remit of the Triennial Review Report, it was criticised nonetheless. Temple described it as
a “dangerous model” with the potential to damage
the HSE’s relationship with businesses.

Temple said that: “While my remit
for this review was primarily to consider the continuing need for HSE’s function, the wealth
of comments I received from stakeholders regarding the Fee for Intervention regime has compelled me to address the issue. I am very concerned at the strength of feeling from stakeholders that FFI has damaged the HSE’s reputation for acting impartially and independently, and therefore its integrity as
a regulator.”

The FFI scheme allows the HSE to recover its investigative costs where a duty holder is found to have breached health and safety laws. Fees are payable even in the event that a duty holder is not prosecuted. The HSE charges £124 per hour for investigative and enforcement work undertaken.

Where more than one duty holder is responsible for a ‘material breach’ (a breach severe enough to require the investigator to notify the duty holder of the breach in writing), the time taken by the HSE in notifying the duty holder and in resolving the breach will be charged to the relevant duty holder.

Where a prosecution does not result in a conviction, the HSE will repay any element of
the fee that ‘wholly and exclusively’ relates to
the offence for which no conviction was achieved. However, if a conviction is attained on some but not all charges, the fees are equally attributable
to all of the offences and no repayment will
be made.

Invoices issued by the HSE under the FFI scheme generated over £6m in fees from the time of the scheme’s inception, in October 2012, and March 2013. Stakeholders have expressed concerns that the FFI scheme has been introduced to ‘fill the gap in the HSE budget’.

The HSE has suffered a significant reduction in government funding from £239m in 2009/10 to £161m in 2012/13. This has meant that the HSE has had to make significant cuts and changes to reporting and investigation.

The HSE has maintained that the FFI scheme
is a cost-recovery scheme and not a penalty scheme. The Triennial Review Report does recognise
that FFI income is a significant element of HSE resourcing, but recommends that the link
between fines and funding must be removed
or the HSE must demonstrate that the benefits of the scheme outweigh the detrimental effects and,
if it is not possible to minimise the effects, the scheme should be phased out. 

It is recommended that at least one independent person should be involved in the
first formal stage of the FFI appeals to guarantee impartiality and independence, something
which the FFI scheme currently lacks.

Material breach

There has been criticism of the FFI scheme that HSE inspectors will identify a material breach, but the advice that they have previously provided to ensure regulations are complied with is less and less available.

One of the functions of the HSE is providing an advisory relationship to the organisations it regulates. With FFI revenue budgeted to achieve £17m in 2013/14, the HSE appears to be set for a shortfall of approximately £6m. It is difficult to see how the HSE can remain impartial when charged with providing a dual function of giving guidance and advice that would prevent companies from falling foul of regulations and at the same time charged with generating part of their revenue by regulating and fining companies for breaches.

The threat of fines may also be seen as a barrier to businesses that would previously approach the HSE for advice. The recommendations made in the Triennial Review Report about the FFI scheme
being altered or abolished therefore could be considered to be a sensible one to ensure that
the HSE continues to maintain good relationships with business, allowing it to fulfil its primary function of promoting good practices and
safety for all.

As part of the government’s continued effort to bring about health and safety reform, on 31 March 2014, the HSE published CD261, a consultation on replacement of the Construction (Design and Management) Regulations 2007. The consultation will close on 6 June 2014.

This consultation seeks stakeholder views
on the HSE’s proposal to replace the Construction (Design and Management) Regulations 2007 (CDM 2007) and withdraw Approved Codes of Practice.

The main proposed changes are to:

• make the regulations easier to understand;
• replace the CDM coordinator (CMDC) role with the principal designer;
• replace the Approved Codes of Practice with targeted guidance;
• replace the detailed and prescriptive requirements for individual and corporate competence with a more generic requirement;
• align notification requirements.

The HSE has stressed that its plans are not set in stone and that it wants to hear from those affected to help shape the final regulations. CDMCs currently have two fundamental duties: to advise and assist the client; and, to ensure the design and the designers are compliant.

Under the potential changes, it is proposed that the principal designer will perform the second
of these duties, and with the exception of identification of pre-construction information, they will have no duty to advise and assist the client in the performance of the client’s duties.

The client is proposed to continue to have a duty (among others) to ensure a project is carried out so far as is reasonably practicable without risk to the health and safety of any person. This should be of major concern to clients who are not experienced in construction, who may not understand designs or be aware of correct construction standards or how materials work. They will continue to have the same duties as they currently have under the CDM (2007), but without any legally designated advice and assistance.

Unfamiliar territory

Within CD261, the HSE has stated that the costs to projects with an overall value in excess of £20,000 will be reduced by removing the need for CDMC. However, if the client is inexperienced, it is likely that they will need to involve a construction health and safety adviser to assist in ensuring duties are met, which means incurring costs.

Without professional advice and assistance (particularly if obtaining that advice is optional), it is highly likely there is a danger of non-compliance through unfamiliarity of regulations and the number of client prosecutions will increase, but more importantly the potential financial savings from abolishing the role of the CDMC could be at the cost of human safety.

There have been recent reports such as the Cultural Overview – Crossrail Project suggesting
that there is a culture developing in which “individuals cannot move and work freely as
they are constantly looking over their shoulders and in fear of reprisals”. The press has also been reporting that workers are becoming too scared
to report injuries for fear of being sacked.

With human life at risk, it seems imperative
that the government should consider whether
it is right to continue with proposed changes
to the health and safety landscape at the cost
of eroding worker safety for the benefit of
financial gain. SJ

Zahra Nanji is a solicitor at Leigh Day