Update | Health & safety

The May health and safety update reported that the government's proposed introduction of the Fee For Intervention Scheme (FFI) in April 2012 had been delayed. It has now been announced that the FFI Scheme will come into effect from 1 October.

The FFI Scheme will allow the Health and Safety Executive (HSE) to recover their investigative costs where a duty-holder is found to have breached health and safety laws. Fees will be payable even in the event that a duty holder is not prosecuted. The FFI Scheme will apply to duty-holders where HSE is the enforcing authority. Duty holders will include employers and self-employed people who put others (including their employees or members of the public) at risk. Other organisations that enforce health and safety law, such as the police, local authorities, the Maritime and Coastguard Agency, Civil Aviation Authority and Office of Rail Regulation, will not be able to recover their costs under the FFI Scheme.

The HSE has provided guidance that the FFI will be enforced where there is a material breach of regulations. A material breach will occur where formal intervention is required resulting in a written requirement from the HSE that the breach be rectified. The formal intervention may include an improvement and/or prohibition notice. When determining whether a breach is material or not, HSE inspectors should apply both the guidance and principles of the HSE's Enforcement Management Model (EMM) and Enforcement Policy Statement (EPS).

The EMM is a set of guidelines published by the HSE in 2002 to assist inspectors in making enforcement decisions in line with the HSE's EPS. The EPS sets out the principles inspectors should apply when determining what enforcement action to take in response to breaches of health and safety legislation. The EPS highlights that it is fundamental that enforcement action should be proportional to the health and safety risks and the seriousness of the breach.

The HSE will charge £124 per hour for investigative and enforcement work undertaken. The duty-holder, subject to intervention, will also be responsible for payment of fees where a third party is contracted to assist in the investigative process.

Where more than one duty-holder is responsible for a material breach, for example, under the Construction (Design and Management) Regulations 2007 (CDM 2007), the time taken by the HSE in acting will be apportioned and 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, but the fees are equally attributable to all of the offences, no repayment will be made.

Although many consider it right that a party at fault should pay a charge for breaching health and safety regulations, concerns have been raised by businesses that the scheme is a way for the HSE to bring in revenue following cuts imposed by the government. To mediate any issues raised by imposition of fees under the FFI Scheme the HSE intends to implement a query and dispute resolution procedure. The cost of resolving initial queries will be met by the HSE. Where queries cannot be resolved and lead to an appeal by a duty-holder, the HSE intends to recover its costs where the appeal is not upheld. Appeals would, initially, be reviewed by an HSE senior manager and, subsequently, by a panel of HSE staff and an independent representative.

Only time will tell whether the FFI Scheme will act as a motivation for duty-holders to adhere to health and safety regulations or whether it will lead to avoidance of reporting to prevent a duty holder from not only avoiding being subject to enforcement action, but also to financial charges.

Deregulating European-style

In a continued effort to press ahead with the government's fast-track plans for health and safety regulatory reform, the HSE published two separate consultative documents in early August. The first consultation, CD242, sets out 'Proposals to exempt from health and safety law those self-employed whose work activities pose no potential risk of harm to others'.

The second document, CD243, sets out 'Proposals to Revise the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (as amended) (RIDDOR '95)'. Both consultations are due to run until 28 October. The title of the CD242 is self-explanatory. Currently, under the Health and Safety at Work Act 1974 (HSWA), self-employed persons have a duty to conduct their undertakings in a way that ensures, that so far as is reasonably practicable, they and other persons who may be affected by their undertakings are not exposed to risks to their health and safety.

The consultation puts forward recom-mendations which aim to follow the approach of other European countries that self-employed persons (those who do not have any employees) are exempt from health and safety legislation where their work activities pose no potential harm to others and do not involve work in a high-risk sector. High-risk sectors are those prescribed by the Secretary of State to include agriculture, construction, gas fitting, nuclear and off-?shore installations.

The proposal to reform the duties of self-employed persons was recommended by Professor Löfstedt in his report 'Reclaiming health and safety for all: An independent review of health and safety legislation', published in November 2011. The government considers that the exemption for self-employed persons will help reduce the perception that health and safety law is inappropriately applied. The exception will not extend to those self-employed persons whose work activities pose a potential risk of harm to others, or to those who employ others, and the duties that others have towards a self-employed person will also not be affected. However, no consideration appears to have been given to the fact that the removal of duties placed upon self-employed individuals could have an impact on an individual's duty to take care of their own safety. Under many of the current health and safety regulations, even employees are charged to take care of their own safety.

The second consultation CD243, proposing to revise RIDDOR is also being undertaken following recommendations made in Professor Löfstedt's review of and seeks to implement the changes recommended by Lord Young in his report 'Common Sense, Common Safety'. This is the second consultation conducted by the HSE on RIDDOR this year and follows the change in injury reporting which took effect in April 2012 where employers now only have to report injuries that keep workers off normal duties for more than seven days, rather than more than three days.

The changes proposed to the RIDDOR system will remove the duty to report cases where the information is of 'little use or better collected through other means'. The proposals, if implemented, will mean certain strain injuries, poisonings, vibration diseases, dermatitis, occupational cancers, dust diseases and asthma will no longer be reported via RIDDOR. Only much rarer work-related biological diseases, including rabies and Legionnaires' disease, would remain reportable. The proposal also includes a submission that self-employed people no longer should have to report injuries or illness to themselves, and the removal of both the duty on employers to report dangerous occurrences outside of high risk sectors activities. The need to report all fatal injuries to workers and those to members of the public as a result of a work activity would remain, as would the duty to report major injuries to workers.

Commentators have argued that the RIDDOR system requires improvements, strengthening and proper enforcement. However these proposals represent a dilution of the current duties and enfeeblement of the reporting and recording procedure. The impact of these reforms, if sanctioned, will impact on how both individuals and employers perform in respect of preventing ill health and injury in the workplace and will further skew the statistics available given that there is already under-reporting.

Lessening reporting duties gives the impression of a relaxation on the overall reasonable duty to take care of employees. The government appears to be barrelling down the road of reform without taking proper time to fully consider the impact of any changes

The HSE European Statistics indicate that British rates of fatal injury in main industrial sectors are substantially lower than the European Union average. The government is therefore in danger of taking a brash approach to regulatory reform which may in future lead to a negative impact on our country's health and safety performance.

The government has also introduced new guidance for its departments and other public bodies recommending that as little as two weeks consultation is required on changes to policy or legislation. It has been suggested that in some circumstances there be no final consultation at all. Currently, the HSE provides stakeholders at least three months to respond to consultations. The government has outlined that the key consultation principles are that departments should follow a range of timescales rather than defaulting to a 12-week consultation period, particularly where extensive engagement has occurred before. The new consultation principles are currently being promoted within Whitehall but the general population will see the new guidance take effect in early Autumn 2012.

It appears that these new guidelines offer further support to the government's efforts to steamroll new initiatives through the health and safety landscape while paying lip-service to 'adequate consultation'. An example of this can be evidenced by the Prime Minister's 'insurance summit' in February 2012 when he met with the insurance industry, to discuss rising premiums. Pledges were made to at the summit to ensure that businesses are not asked to go beyond what is actually required by law and insurers committed to challenge more 'vexatious' health and safety civil claims in order to tackle the 'compensation culture'. No representatives of consumers or accident victims were present at the summit to advance the view that the compensation culture has been repeatedly proved to be a myth. As Linzi Herbertson, founder member of Families Against Corporate Killers, said in July 2012 'no-one we loved was killed due to too much regulation or enforcement but the complete lack of either, and the real burden is on us'. Therefore the removal of regulations and proposed government reforms to streamline the health and safety landscape does not appear to be welcomed by many stakeholders. Although the government agenda is ready and set, it does not appear from many stakeholder perspectives, to be good to go.