The Health and Safety Executive (HSE) has published details of how its controversial ‘fee for intervention’ (FFI) scheme will work in practice.
From Monday 1 October 2012, the HSE has confirmed it intends to charge businesses, which it regulates, £124 an hour if HSE inspectors spend time investigating and resolving ‘material breaches’ of health and safety legislation which they find during an inspection.
Until the guidance was published at the end of last week, however, there had been no definition of what would constitute ‘a material breach’. The guidance has now confirmed that a ‘material breach’ occurs when “in the opinion of the HSE inspector, there is, or has been, a contravention of health and safety law that requires them to issue notice in writing of that opinion to the duty holder”.
The document lists examples of ‘material breaches’ which would trigger charges under the new scheme, such as|:
• inadequate machine guarding which could result in a crush injury
• no written risk assessment where significant risks are not adequately controlled
• poorly defined traffic routes or failures to separate pedestrians from traffic
• failing to manage contractors on site effectively
• not providing hot and cold running water for workers on site
Commenting on the guidance, Sally Roff, head of the Safety, Health & Environment Group at international law firm DAC Beachcroft, warned, “The absence of clarity within the guidance in defining ‘material breaches’ more comprehensively is a concern. The examples given are limited to serious breaches of safety law which businesses would already expect to equate to a ‘material breach’.
“Where the guidance is lacking is in defining where more minor incidents might be interpreted as a ‘material breach’. Without clearer definitions, businesses are at the mercy of the individual HSE inspector’s opinion on the situation. This means that the interpretation of ‘material breach’ is likely to be inconsistent.
“Businesses will need to change their approach to HSE inspections,” she said. “Their focus should be on ensuring compliance with health and safety legislation prior to inspections. They also need to have a process in place, so that any contraventions found by an inspector are dealt with quickly and communicated efficiently to the HSE. In this way, they will minimise the time an inspector spends dealing with it.
“The HSE’s decision to charge for its investigations will completely change the dynamics between itself and the businesses it regulates,” she concluded. “Historically, businesses could turn to the HSE for constructive advice and support; but from 1 October 2012, its role will become that of enforcer.”
DAC Beachcroft is holding a series of seminars in London (11 September 2012), Bristol (12 September 2012) and Leeds (12 September 2012) to examine how the new scheme will operate in practice, what organisations can do to prepare and how they should approach HSE inspections.