An inspector calls
Health and safety laws are enforced by HSE Inspectors or by officers from your local authority (Environmental Health Officers). Inspectors might visit your business for a routine inspection, typically every few years and they are very likely to visit following an accident or complaint about workplace safety standards. While inspectors do have the right to enter your premises at any reasonable time, you can politely ask if they could return at a later date.
High risk businesses
Since manufacturing is a high-risk sector it remains a major priority for inspector visits, as well as those businesses that fail to manage health and safety properly. When inspecting, they asses the physical safety standards, documentation standards and ‘confidence in management’, producing a score for your business. If you are polite, amenable and effectively demonstrate the importance of safety in your business, you will achieve a lower risk rating score resulting in less frequent inspector visits - this can only be a good thing.
Health and safety inspectors have the power to take enforcement action, which could be anything from giving advice, through to serving an Improvement Notice, Prohibition Notice and/or prosecuting. They cannot close a business down but the serving of a Prohibition Notice can shut down a piece, or pieces, of equipment or machinery which can, dependent on your process, stop your business running right there and then.
An inspector can also talk to staff, take witness statements, or interview under caution if they suspect something is not as it should be. In this situation, they can seize documents, take photographs or measurements, or dispose of equipment to prevent it from being used again in the short term.
Fees for Intervention
Since 2012 the HSE (and not Local Authorities) has operated a Fee for Intervention (FFI) cost recovery scheme. If you are breaking health and safety laws, the HSE may recover its costs from you by charging a fee for the time and effort it spends on helping you to put the matter right, such as investigating and taking enforcement action.
The fee payable by duty holders found to be in material breach of the law is £129 per hour - based on the amount of time it takes the HSE to identify and conclude its regulatory action, in relation to the material breach (including associated office work), multiplied by the relevant hourly rate.
Manufacturers bear the brunt
Since manufacturing is a high-risk sector subject to regular inspection, you need to expect a visit sooner rather than later. It is also reasonable to assume that the HSE will be actively looking for a material breach. In June 2016 for example, 1460 FFI invoices were sent totaling £962,081. This brings the total bill facing the sector last year to £5.2m with manufacturers bearing the brunt of the FFI scheme.
Material breaches
An FFI is triggered when an inspector finds a material breach. According to HSE guidelines, a material breach is defined as ‘a contravention of health and safety law that requires an inspector to issue a written notice to the duty-holder. This may be notification of a contravention, an Improvement or Prohibition Notice, or a prosecution and must include the law that the inspector’s opinion relates to; the reasons for their opinion and notification that a fee is payable to the HSE’.
Some examples of ‘material breaches’ which would prompt a charge include:
- Inadequate machine guarding
- Untrained machine operators
- Inadequate/lack of risk assessments for machine use
- Insufficient clear work space and lighting around machinery
- Failure to adequately maintain machinery
- Poor risk management procedures
The most serious breaches of health and safety legislation are often clear cut and so they don’t require a lot of an inspector’s time. There are many ‘grey’ cases however, that may involve an inspector engaging specialist assistance to determine an issue. Since this requires more time you will be charged more under the FFI scheme.
If you have a situation however, where you believe that a material breach has been wrongly identified in your business, be prepared to engage with the inspector and don’t be fearful of pushing back. If possible, if it’s something that can be fixed easily then agree a solution at the time - this will help reduce the time spent on the issue and therefore your invoice too.
A distinction must also be made between whether something is a material breach or not and the commercial decision to pay. Since there is a risk that if you pay an invoice it may be used in the future to prove that there was acceptance of a material breach. So, you must write to the HSE explaining why you disagree and if you’ve chosen to pay, you must also state that the payment is not an admission that a material breach had taken place.
A change in approach
Is it important therefore, that you change your approach to HSE inspections, by focusing on compliance with health and safety legislation prior to an inspection. You also need to have a process in place, so that if any contraventions are found by an inspector they are dealt with quickly and communicated efficiently to help minimize the time an inspector spends dealing with it.
If you do receive an FFI following an inspection - don’t panic. Always take professional advice before simply paying an invoice as it may help prevent further unnecessary costs in the long-term.
Southalls expertise will help ensure that you stay ahead of your health and safety legal requirements. Its team of safety professionals, many of whom are from an enforcement officer background, will help you to not only achieve compliance within the business but also minimize the likelihood of charges under the FFI scheme.
Visit www.southalls.com to book your free consultation.
