It’s safe to say that if you’re working in the engineering sector, you’ll be aware of the multiple risks your workplace presents if the correct systems, processes and safety measures aren’t in place. But accidents can happen, and the Health and Safety Executive (HSE) is rightly set up to minimise and avoid work-related occupational health and safety risks.
As of October 1 2012, however, businesses have another reason to pay heed to health and safety: the Fee for Intervention (FFI) cost recovery scheme, which represents a step change in HSE’s approach. It should come as no surprise to learn that, depending on the nature of the alleged health and safety breach and the extent of possible damage, an HSE investigation can take months or even years to complete. If the HSE finds serious breaches, it may take enforcement or legal action resulting in fines, legal costs and many other expenses, all of which can be debilitating.
In cases of negligence, prison sentences and a criminal record for directors or those responsible are not unheard of – an extreme example being a 2004 incident on the West Coast Main Line where a runaway wagon loaded with steel killed four rail workers. The company boss had sidestepped hydraulic repairs and filled cables connecting the crane with ball bearings instead. One of his employees had used only wooden chocks to secure the wagons. Both were convicted of manslaughter and health and safety breaches and received prison sentences.
But now, under the new FFI scheme, regardless of whether additional legal action is taken, businesses may be charged by the HSE if an inspector finds any material breach during a site inspection.
Material breach
So what constitutes a material breach? You don’t need to be a health and safety specialist to anticipate the full gamut of health and safety rules, regulations and recommendations, but the definition is straightforward: “A material breach is when, in the opinion of the HSE inspector, there is or has been a contravention of health and safety law that requires them to issue notice in writing of that opinion to the duty holder”.
While this all sounds simple enough, there are some important points to consider:
1. The HSE calculates its fee based on an hourly rate of £124, and the FFI timer starts ticking from the moment the HSE visit starts (so long as a material breach is discovered). The FFI includes all of the H&S inspector’s investigation time on the initial investigation; taking statements, any further site visits, obtaining expert advice – in fact any activity until the matter is satisfactorily concluded. That’s to the satisfaction of the HSE – not necessarily to yours.
2. If you disagree with the findings, you can of course appeal them to the HSE itself. Unfortunately, if your appeal is dismissed, you’ll be charged at the same hourly rate while the HSE investigates your dispute and its own investigation. If your objection is upheld, the fee will be waived.
3. Within the first two months of going live, the scheme recorded almost a thousand premises where FFIs were issued. Early evidence suggests that the majority of fees raised are around £500 where no enforcement action is taken, and even more when it is.
4. The inspector’s opinion is based on strict rules and regulations, but it is an opinion and will be final in most cases. This may leave a lot of companies uneasy as to how vulnerable they really are.
What next?
So is FFI something to be concerned about? Since the average FFI is around £500, it’s not likely to put you out of business, but it will take time to resolve – and you might well feel time is better spent on your core business.
It’s the serious problems that will prove most expensive, but the FFI cost of even a major breach is likely to be trivial in comparison with the legal and financial consequences of enforcement action and prosecution – not to mention reputational damage.
If your company is already managing health and safety effectively, you’ve nothing to fear from FFI. But if health and safety isn’t given the full respect it’s due, then the serious moral, legal and financial implications of injuring or killing someone are an infinitely more pressing concern than this new initiative from the HSE.
For the official guidelines on FFI, visit http://www.hse.gov.uk/fee-for-intervention and for more details on managing your health and safety requirements, visit https://selectra.co.uk/energy/guides/environ.
