Half of respondents to a survey about the HSE’s new Fee for Intervention (FFI) scheme are unclear about what constitutes a “material breach”, with fears raised that the term could be interpreted differently by different inspectors, resulting in inconsistencies.
The FFI scheme, which began on Monday (1 October), places a duty on the HSE to recover its costs for carrying out its regulatory functions. Inspectors who identify material breaches at the sites they visit will charge organisations £124 an hour for the time they spend investigating and resolving the breaches.
In a survey carried out by legal firm DAC Beachcroft, questioning more than 100 organisations across a range of industries, 50 per cent of respondents admitted they didn’t understand the definition of a material breach.
According to the HSE’s FFI 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.
Businesses in compliance with their legal obligations will not have to pay a penny, according to the regulator, which hopes that FFI will act as a further incentive for duty-holders to operate within the law and help level the playing field between compliant and non-compliant employers.
However, Prospect, the union that represents HSE inspectors, believes that some form of material breach will be found at most sites visited. According to Mike Macdonald, the union’s negotiator, the message that compliant companies have nothing to fear from FFI “will lead a lot of businesses into thinking that they won’t be charged; then they end up being charged and that unsettles them”.
The DAC Beachcroft survey also revealed concerns that the lack of clarity over the term could lead to different interpretations depending on the inspector involved – a view support by the Forum of Private Business.
The Forum’s senior policy advisor, Alex Jackman, called on the HSE to clarify what constitutes a material breach. “Of course we need effective laws governing health and safety in the workplace – and for these laws to be policed – but a situation where breaches are being diagnosed in anything other than a standardised way is not acceptable,” he said.
“The danger is that this move will simply fuel the HSE’s cost-recovery drive and it could lead to wildly different interpretations among inspectors as to what constitutes a breach in the first place. We need clarification without delay.”
Sally Roff, head of the safety, health and environment group at DAC Beachcroft, commented: “We still need a far clearer definition from the HSE on what will equate to a “material breach” so that it can’t be interpreted in different ways by different inspectors. The best way for business to prepare is to ensure their health and safety processes and procedures are water-tight and that their employees are well-informed about the HSE’s new approach.”
The survey also showed that about 70 per cent of respondents are worried that FFI will cause strains in their relationship with the HSE, with 58 per cent saying they would be less likely to approach the regulator for advice. About half also expected more frequent visit from inspectors.
Macdonald is concerned that some companies might withdraw from cooperating with the HSE over research projects. He suggested to SHP that if specialist inspectors visit a site for research purposes and spot a material breach then, in the interests of consistency, they would be duty-bound to charge the firm under FFI.
He called on the Government to undertake a proper review of the scheme after 12 months of operation to see if it is actually incentivising duty-holders to operate within the law and whether health and safety improvements are being made as a result.
Concerns that FFI will herald a weakening in the relationship between regulator and duty-holder also chime with the findings from a separate survey carried out by law firm DWF earlier this year.
Steffan Groch, head of its regulatory and litigation team, said: “Currently, as an advisory body, the HSE is a go-to for advice and support, especially for smaller businesses. Following these changes, however, there is a concern that organisations will shy away from consulting the HSE, or avoid reporting accidents, in fear of being charged or penalised if they are found not to be complying with the law.
“With the new guidelines in mind, there are certain legal steps that health and safety professionals should take to ensure they are compliant with the new regime, and are in a position to quickly and efficiently deal with any HSE investigations. For example, companies should make sure that there is an appointed representative for each of its sites to deal with the HSE – and that person should act as the point of liaison for any inquiries or investigations.”
A ‘material breach’ could be anything pursuant to s2 or s3 of HSWA, or specific to any number of regulations and ACoPs. An inspection on a construction site site would be akin to walking into a candy store – take your pick. That said, if applied sensibly FFI could be just both morally and legally.
The principle of ‘the polluter pays’ has been at the forefront of environmental legislation for many years. Now it’s about ensuring you manage your business safely or pay for your indiscretions.