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August 28, 2018

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Legislation Update

Legislation Update Q&A: PPE, GDPR, Sentencing Guidelines, Fee for intervention, Enforcement

Health and safety law and securing compliance remains to be an ever important and far reaching area, particularly now in light of unlimited and ever increasing fines. Following our recent Legislation Update webinar, Emma Evans, Associate of Pinsent Masons, answers some of your pressing questions.


Fee for intervention:

Has the regulation been replaced with The Health and Safety and Nuclear (Fees) Regulations 2016?

Emma Evans

Emma Evans

Emma Evans (EE): “Fee for intervention (FFI) – the charge that allows the Health and Safety Executive (HSE) to recover its costs for carrying out its regulatory functions from those found to be in material breach of health and safety law – was originally brought in to force from 1 October 2012 by the “Health and Safety (Fees) Regulations 2012”.  This legislation has now indeed been repealed and replaced by The Health and Safety and Nuclear (Fees) Regulations 2016 (‘the Fees Regulations’).

“Regulation 22 and 23 of the Fees Regulations still allows the Executive to recover its reasonably incurred costs for the performance of its statutory functions (although note that this does not extend to any criminal investigation or prosecution, incurred (in either case) from the date on which any information is laid or, as the case may be, any written charge is issued (separate prosecution costs would be imposed in this instance), or for appeals heard in the Employment Tribunal against the imposition of Improvement or Prohibition Notices).”

If there is a dispute and the FFI is upheld, are you liable for additional FFI costs?

(EE): “If you are unhappy, for example, about the overall total amount of the FFI invoice or the reason why the costs have been incurred, you can contact the HSE FFI Team in the first instance, preferably by e-mail, as soon as possible after receipt of the invoice and no later than 21 days after the invoice date to raise an initial query.  Queries can be raised free of charge and you should be notified of a decision within 21-days.

“Thereafter, if you are still unhappy with the response provided to your query, you can dispute ALL or PART of the invoice. By virtue of Regulation 24 (5) of the Fees Regulations, the HSE were required to provide a procedure by which disputes relating to fee for intervention could be considered.  Disputes must be raised as soon as possible after HSE has responded to the query and no later than 21 days after the date of HSE’s response.  If the dispute is not upheld, you are liable to pay the costs that have been reasonably incurred in handling the dispute as provided for by Regulation 24 (6) of the Fees Regulations (see question 4 below for more information.”

Is the appeal process still charge at £129 per hour?

(EE): “Regulation 24 (6) of the Fees Regulations states; “If a dispute relating to fee for intervention is not upheld, the fee for intervention payable is to include costs reasonably incurred by the Executive in handling the dispute.” Therefore, I think it is likely the Executive can charge for this at the same rate that currently applies under the regime, namely £129 per hour.”

With regards to the FFI dispute process, is there a guide on the costs to go through the independent panel and who appoints the independent panel?

(EE): “There is no set guide as to what costs will apply in the event that you dispute an FFI invoice, it is likely that each dispute will vary and have to be approached on a case-by-case basis.  Regulation 24 (6) of the Fees Regulations only allows the costs reasonably incurred in handling the dispute to be covered in the event that the dispute is not upheld.  In this regard, it is accepted by the HSE these costs will only relate to the costs incurred by the panel in considering the dispute, NOT any costs incurred by HSE in preparing for or providing information to the panel.

“Disputes will be considered by a ‘Disputes Panel’ which is independent of HSE. This consists of a lawyer as chair, together with two other members with practical experience of health and safety management. Details of the panel members and their experience will be provided to the duty holder before the panel meeting to provide them with an opportunity to raise any issue or concerns.”


Enforcement:

In reference to the Chevron case – how do you suggest not accepting the notice being suggested by the Inspector at the time whilst they are on site….? Or, does this happen once the notice is formally received?

(EE): “If you are informed at the time of the HSE’ visit that the Inspector believes you to be in material breach, and/or you are served with an Enforcement Notice (Improvement or Prohibition Notice) at the time of the visit, and you already have strong grounds and clear evidence to refute this, there is nothing preventing you from verbalising this to the Inspector at that time and inviting them to reconsider their position in light of your evidence.

“However, you may not become aware of the Inspector’s intention to issue an Enforcement Notice until after the visit.  Upon receipt of an Enforcement Notice, you then have 21-days in which to consider a formal appeal to the Employment Tribunal. Appeals against Enforcement Notices can be brought for a variety of reasons, such as: disputing that you are in material breach of the relevant statutory provisions; the Inspector’s opinion to issue Notice was premature, unreasonable and/or disproportionate; or advancing that not all the available and relevant information was taken into account by the Inspector before deciding to issue the Notice.

“In relation to the Chevron case, the decision to uphold the cancellation of the Notices was based upon evidence that only became available many months after the Prohibition Notice was served.  An earlier case of Rotary Yorkshire v Hague [2014] EWHC 2126 (Admin) ruled that: “…only evidence available or which could reasonably have been available to the HSE Inspector could be taken into account when deciding an appeal”. However, the Supreme Court – the UK’s highest court – in Chevron confirmed that when considering an appeal, Tribunals are now entitled to take into account additional evidence that was not available to the health and safety Inspector at the time of the visit.  Lady Black stated:

If, as in this case, the evidence shows that there was no risk at the material time, then, notwithstanding that the inspector was fully justified in serving the notice, it will be modified or cancelled as the situation requires….”

“Therefore, if you receive an Enforcement Notice, and do not accept it and/or feel there may be grounds to appeal, it is sensible to seek specialist legal advice promptly after receipt of the Notice to consider whether an appeal can be lodged within 21-days.  In that timeframe, you can also properly consider whether there may be any additional evidence available, or that is obtainable, which should also be taken into account by the Inspector and may assist in being able to successfully cancel imposition of the Notice.”

Re. Supreme Court’s recent decision on enforcement notices. Does this ruling have a similar impact on other regulations, for example, The Fire Safety Order (RRO)?

(EE): “The Supreme Court’s decision in Chevron was specific to Notices imposed by the HSE, where the right of appeal was to the Employment Tribunal and there are no examples yet that I am aware of, where the decision has been more broadly applied to Notices made under the Fire Safety Order.  However, these Notices have similar effect, in that they can remain on the Enforcement Register database for a period of 5-years, and there is a right of appeal within 21 days of the serving of the notice to a Magistrates Court. In the event that you are served with such a Notice, you may wish to consider obtaining specialist legal advice to see whether there may be any grounds in which to challenge it, and I see no reason why relevant information – even if obtained after the service of the Notice – shouldn’t be made known to the fire authorities to see if that would make a difference to their view to serve the Notice.


PPE:

Do the PPE Enforcement Regs run in line with the previous ones or do they supersede them? and How do I know if it is compliant with the new Regulation?

(EE): “Employers have duties concerning the provision and use of personal protective equipment (PPE) at work. PPE is equipment that protects the user against health or safety risks at work, and it can include items such as safety helmets, gloves, eye protection, high-visibility clothing, safety footwear and safety harnesses. The Personal Protective Equipment at Work Regulations 1992 are still in force and amongst other things, require: “Every employer shall ensure that suitable personal protective equipment is provided to his employees who may be exposed to a risk to their health or safety while at work except where and to the extent that such risk has been adequately controlled by other means which are equally or more effective.”

“Since March 2016, the PPE Regulation (EU) 2016/425 (The PPE Regulation) was also introduced, to supersede and repeal the former Council Directive 89/686/EEC. This allowed a two year transition period, and 89/686/EEC was repealed with effect from 21 April 2018.  From 21 April 2018, the PPE Regulation requires all importers, distributors and manufacturers of PPE to meet the new requirements.  EC Type Certificates to the old PPE Directive can still be issued for a further 12 months after this date. The Personal Protective Equipment (Enforcement) Regulations 2018/390 were enacted in into UK law from 21 April 2018 to ensure that 2016/425 is complied with and provides enforcement powers to the authorities where the requirements are not met.

“When procuring or sourcing PPE, you will need to ensure that it complies with the new PPE Regulation 2016/425, and in this regard it should have: the relevant EU Type Examination Certification; a Declaration of Conformity should be available with every product; the user instructions supplied in the correct language; it should be CE marked; and you can also check whether it displays a ‘BSI Kitemark’ which would demonstrate that it was tested to and meets a ‘published standard’.”


Sentencing Guidelines:

What is the applicability of the 2016 sentencing guidelines in Scotland?

(EE): “The Definitive Sentencing Guidelines for Health and Safety Offences strictly only applies in England and Wales.  However, Scottish Courts and Judges certainly will have regard and give consideration to what penalties the English Court’s are handing down this side of the border, and the Guideline may have some persuasive effect in terms of the levels of fines handed down in Scotland.  Recent appeal cases have confirmed this, such as: Scottish Power Generation Limited, where the Criminal Appeal Court considered the applicability of the new guidelines in Scotland.

“The case involved a prosecution following an accident at a power station in 2014 when an employee was injured following the escape of high pressure steam due to a faulty valve. The Sheriff applied the 2015 guidelines during the sentencing process and imposed a fine of £1.75M. The company appealed the sentence. On Appeal, it was argued that the 2015 Guidelines, which vastly increased the level of fine, should not automatically be followed in Scotland. However, they considered on appeal that the guidelines provided a useful “cross-check” for Scottish sentencing judges especially where the offence is regulated by a UK statute, such as the Health and Safety Act 1974.”

When imposing fines many medium to large companies are divided up into business units or divisions, are the fines calculated on the Group’s turnover or the individual BU’s/Divisions?

(EE): “It will not usually be the business unit or company division finances that are taken into account, but the relevant corporate legal entity who is considered to be the Employer in the circumstances and/or the relevant corporate legal entity in charge of the undertaking.  It may be possible, where a business unit / division is operated in a distinct, separate, self-contained manor with its own management structure and accounts etc. to try and advance that it is a de facto company in its own right and as such, only its finances should be taken into account.

“However, my experience is that it is still the relevant corporate entity behind that relevant division or business unit which is before the Court, and hence its finances are what are considered. The Sentencing Guideline states that normally, only information relating to the organisation before the court will be relevant, however it does provide for the Court to exercise its discretion which could include the finances of the wider Group, if exceptionally it is demonstrated to the Court that resources of a linked organisation are available and can properly be taken into account.”


GDPR:

H&S considerations for GDPR? and How will GDPR affect H&S and standards?

(EE): “The General Data Protection Regulation 2016/679 (GDPR) will take effect in the UK from 25 May 2018, and is set to introduce the potential for multi-million pound fines for data protection breaches. The Information Commissioner has the power to sanction and issue fines of up to 4% of a business’ annual global turnover, or €20 million, whichever is highest, where they are responsible for certain breaches of the GDPR. Other types of breaches could attract fines of up to 2% of annual global turnover, or €10m.

“For Health and Safety professionals, there is inevitably a considerable amount of personal and sensitive data they may be privy to and come to process i.e. training records, details of health issues, names and addresses of those involved in or witness to an accident, images from CCTV etc. ‘Personal Data’ includes any information relating to an identified or identifiable individual, whether directly or indirectly.

“GDPR encompasses many of the existing requirements placed on companies when it comes to handling such data, in that data needs to processed lawfully, fairly and in a transparent manner, and collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes. Companies must be able to show how they comply with these requirements.  There are a number of steps that health and safety practitioners can take to ensure they are compliant;

  1. assess all categories of personal data they collect, to ensure they meet the requirements and that all processing does take place in accordance with the data protection principles, and there is a lawful basis for the processing;
  2. give further thought and regular re-assessment to the reason for collecting each separate category of personal data, and whether this must be properly communicated to the data subject – GDPR has a mandatory list of information which must be given to individuals where data is obtained from them (directly or indirectly);
  • Documenting the data: how it is collected; where it is stored; how long it is kept and for what purpose(s); how it is deleted? etc.;
  1. reviewing the security of your data systems and those of any third parties providers to ensure they are compliant. Undertake a risk analysis and document your findings. Consider whether additional measures should be taken to enhance security, for example, encryption and/or other ways of anonymising data. Any sharing with third parties must be documented;
  2. regularly carrying out risk assessments;
  3. ensuring staff receive regular and appropriate training on how to handle personal data; and
  • Having a robust and fully compliant data protection policy in place which is regularly reviewed and fully supported. The policy should contain information on: –
    1. the collection and use of personal data, the reason why it is collected and why it is processed;
    2. the rights of data subjects and how you will ensure that these are upheld; and
    3. how data breaches are dealt with.”

To read Kizzy Augustin’s Q&A, covering Legal Privilege, Sentencing Guidelines, ISO 45001, click here.

Download: October 2020 Legislation Update

COVID-19 continues to bring unprecedented challenges for people, businesses and societies. To help you navigate the confusing and fast-changing regulations, guidance and legislation – covering not just the coronavirus pandemic, but fire and building safety and the environment – get your free copy of the October 2020 Legislation Update.

    • Latest COVID-19 measures and legislation;
    • Fire safety and post-Grenfell safety regime;
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April 2020 Legislation eBook

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