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September 13, 2012

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Unjust’ HSE enforcement ban brought firm to the verge of collapse

A Norfolk company has accused the HSE of nearly putting it out of business after the regulator imposed a ban on the movement and delivery of its chemical products, in the belief that the firm had breached safety laws.

AgChemAccess, an international agrochemicals supplier with a workforce of about 65 people, intends to sue the HSE for around £2m in lost business.

The HSE took enforcement action on 10 July, prohibiting the company from moving any of its UK stock, as the regulator believed there was a breach of safety regulations relating to the packaging of a shipment of the herbicide glyphosate.

On 29 August, with the company having sought a judicial review in the High Court that was due to take place later that week, the HSE agreed to lift the enforcement ban. The company’s legal fees of around £200,000 will now be met by the taxpayer, but AgChemAccess is also seeking damages for contracts lost during the eight weeks of the ban. Ten employees also lost their jobs, as a direct result of the freeze in trading, according to the firm.

Nick Gooch, managing director at AgChemAccess, slammed the HSE for being too heavy-handed by imposing a blanket ban on the movement of all its products stored in two warehouses, instead of focusing on the shipment issue in isolation.

“They [inspectors] were told that a small amount of this product had leaked,” he explained. “They didn’t stop and ask any questions – they just ploughed on.”

“This has been absolutely disastrous for us. We have got products left in store, which we can’t sell for another year, and if it had gone on another two or three weeks, we would have gone out of business.”

He continued: “Not only have we had to shed 10 jobs, but our UK and international reputation has suffered. We have long-standing customers who have gone elsewhere because we could not deliver to them. Potential new contracts have also been lost.”

Darren Bowen, a partner at Leathes Prior Solicitors, which represents AgChemAccess, said he was surprised by the actions of the HSE inspector in this matter.

He remarked: “The HSE has an important role to play in protecting the public interest but, as demonstrated in this case, this needs to be balanced against the rights of a business to undertake its legitimate trade. I believe it is fair to say that, on this occasion, the HSE got it very wrong.”

An HSE spokesperson confirmed that there is an ongoing investigation into the activities of AgChemAccess Ltd, as well as ongoing legal proceedings being brought by the company against the HSE. The spokesperson added that, on both matters, “it would be inappropriate to comment further” at this time.

Businesses are currently preparing for the introduction of the HSE’s Fee for Intervention (FFI) scheme, set to come into operation next month, and there remain concerns from employers and lawyers about the approach inspectors will take.

Paul Verrico, principal associate at Eversheds law firm, expressed concern that there could be more incidents of regulatory exorbitance once the FFI programme is up and running.

He said: “One of the chief complaints made by AgChemAccess was the HSE’s complete failure to engage with the company’s concerns about disproportionate use of the HSE’s powers, which effectively meant the business could not trade.

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11 years ago

As an X HSE inspector in days when the objective was avise/work with employers, without the loss of jobs, now the problem is: 1. cost of mature, experienced inspectors is prohibitive v cheap “wet-behind-the-ears” with little savy of business reality, or the application of “Best Practice” to over prescriptive Regs, or the ” objective setting” Regs whose expectations not even inspectors understand. 2.Thus, FFI is seen as just another tax, like the NHS, Education, etc targets,to promote politicians

11 years ago

C’mon X HSE Inspector, show yourself. We know who the commentator is; we recognise the grammatical errors and the usual whining about the HSE – but we can presume you were happy enough to take the Queens Shilling when you were employed as an HSE Inspector.

I work independantly, a registerred OSHC and I note that you post an opinion on nearly every other item in SHP with your name and you talk constantly about regulations and evidence; but little about advise. Step up to to the plate!

11 years ago

Re “C’mon X HSE Inspector, show yourself….”

Thought I should correct my own grammaticaI errors! Oops!

I work independently, as a registerred OSHC and I note that you post an opinion on nearly every other item in SHP with your name and that you talk constantly about regulations and evidence; but little about advice. Step up to the plate!

11 years ago

My experience is prohibition is in case of imminent danger. Is localised to the danger and in force only until danger dealt with or otherwise Imrpovement notice (with time to act) so one must assume all these chemicals were imminent danger – I doubt it so tend to agree with J however the company view that HSE is there for “Protecting the public interest” and safety should be balanced against a right to trade should give cause for concern.

11 years ago

OK Ernie, you’ve had a week and nobody has guessed who you are on about.
Who’s your number one suspect? (the rest of us clearly don’t have a clue who you have in mind ;p)
On a more serious point though, FFI could lead to serious issues if it is not regulated properly and could easily become an income generator for the HSE. It would be interesting to see comparative figures in a year or so showing the numbers of visits and the amount of chargable work done before and after FFI implementation.