The legal and regulatory challenge of HSE’s fee for intervention

Posted on 19 Sep 2013 by Tim Brown
Health and safety test

Much has been made of recent statistics indicating that British manufacturing is undergoing a renaissance. The figures may show a green shoot of improvement, but some recent changes to the UK’s regulatory framework could – contrary to their intention – hinder economic growth.

There have been a number of enquiries and consultations with the view to making health and safety requirements more aligned with ‘common sense’ values in the workplace. Deregulation of health and safety requirements has occurred and will continue in the future. There is, however, concern that this in itself creates confusion for employers – and particularly for manufacturers, where enforcement of health and safety regulations in industrial environments is a serious matter.

There has been concern amongst many about the speed and vigour with which the reforms are being rolled out. Care must be taken to avoid creating greater confusion for those who have to perform duties under health and safety legislation, so that the UK’s globally high standard of safety in the workplace does not slip.

The HSE’s Fee for Intervention scheme (FFI), first introduced in October 2012, is creating a challenge for British manufacturers. Interpretation of the key words “material breach” (which triggers FFI) in the legislation is a difficult assessment to make for both the HSE and dutyholders. The HSM scheme raised £2.7m in its first six months, but of the 5766 invoices issued 42 per cent were in the manufacturing sector – which contributed £450,000.

There seems to be a trend in the payment of these invoices without full consideration of the consequences, as it is seen as a preferable resolution to enforcement action of any kind. The reality is harsher however, as acceptance of a material breach may be relied upon in a later prosecution as evidence of bad character or a tendency to offend – or may be taken as a tacit admission of liability in the event a compensation claim is pursued.

Manufacturers should avoid this additional challenge to their regulatory compliance by ensuring they know about the scheme and what to do if they get a material breach letter.

As ever, assessing risks and employing strategies to reduce risk – where possible and where practical – is likely to be the least confusing and the least challenging path for manufacturers in the discharge of their regulatory duties.

by Crispin Kenyon, a partner at national law firm Weightmans LLP’s Regulatory Services Unit.