April 24, 2014

Paying the price for poor health & safety

Are you breaking health and safety laws?

Did you know that you could be charged if the Health and Safety Executive (HSE) has to intervene because of poor health and safety practices?

The HSE will charge you for any time and effort spent on investigating, correcting problems and taking enforcement action.

What is fee for intervention (FFI)?

This ‘Fee for Intervention’ (FFI) is the cost of HSE’s inspectors work when carrying out investigations and complaints or if when visiting your premises they see a material breaches of the law, the cost is based on the time that the inspector has had to take in identifying the breach, helping you to put it right, investigating and taking enforcement action.

Will it apply to you?

If you comply with the law you won’t pay a fee.

FFI will apply to all businesses and organisations inspected by HSE, except for:

  • self-employed people who don’t put people at risk by their work;
  • those who are already paying fees to HSE for the work through other arrangements; and
  • Those who deliberately work with certain biological agents.

Why FFI?

Both the Government and HSE believe it is right that business that are in a material breach of health and safety laws bears the cost to investigate and enforce proceedings and it should not come from the public coffers to put it right.

It is believed that FFI will l also encourage businesses to comply in the first place by put matters right quickly and discourage businesses who think that they can undercut their competitors by not complying with health and safety laws.

What is a material breach?

A material breach is where you have broken a health and safety law and the inspector judges this is serious enough for them to notify you in writing. This will either be a notification of contravention, an improvement or prohibition notice, or a prosecution.

Before deciding to notify you in writing, the inspector must apply the principles of HSE’s Enforcement Policy Statement (www.hse.gov.uk/pubns/hse41.pdf) and Enforcement Management Model (www.hse.gov.uk/enforce/emm.pdf) to ensure their decision on the level of enforcement action is proportionate to the circumstances they see.

How could it affect you?

The following are examples of health and safety breaches that the HSE have warned are likely to trigger FFI:

  • Not ensuring a safe site, e.g. poorly defined traffic routes, obstruction of aisle ways or roadways, poor lighting, uneven surfaces and no separation of pedestrians from vehicles where this is reasonably practicable;
  • Not providing safe vehicles, e.g. defective steering, brakes, mirrors, lights, and no reversing aids where required
  • Not ensuring safe drivers, e.g. fork-lift truck drivers who are neither trained nor competent.

From the moment FFI is triggered, every minute of time that the HSE spend on a matter becomes chargeable to a business at a rate of £124 per hour.

The time that is chargeable will include anything from time spent visiting yards or checking vehicles, to time spent drafting letters, making phone calls or engaging experts to assist with investigations.

What’s more, if the HSE does engage a third party, for example an engineer to inspect vehicles or a tachograph analysis bureau to advise on drivers’ hours, the duty holder will be charged the full extent of those third party’s fees, not limited to £124 p/h.

These fees could run into thousands of pounds and yet business would have no control over the time or expenses incurred by the HSE and would only discover the extent of their liability once they receive the HSE’s invoice. (Charge quoted at time of print)

Other examples of material breaches include: not providing guards or effective safety devices to prevent access to dangerous parts of machinery; or materials containing asbestos in a poor or damaged condition resulting in the potential to release asbestos fibres.

The inspector’s written notification will make it clear which contraventions are material breaches where a fee is payable.

How much might it cost me?

The fee is only chargeable for works undertaken by HSE inspectors…

The inspector will record the time they have spent identifying the material breach, helping you to put it right, investigating and taking enforcement action.

This will include time spent: carrying out visits (including all the time on site during which the material breach was identified); writing notifications of contravention, improvement or prohibition notices, and reports; taking statements; and getting specialist support for complex issues.

This total amount of time will be multiplied by the FFI hourly rate to give you the amount you must pay. For the current FFI hourly rate, visit www.hse.gov.uk/fee-for-intervention/index.htm.

There is a cautionary note here that any invoice you may disagree with you should be clear what you consider to be wrong i.e.  were not in material breach of the law or the  time the fee is charging for is not correct, there are procedures you can follow to register your query complaint with in 21 days of the invoice date.

If you disagree with HSE’s reply to your query, dispute it. You will need to put down in writing why you disagree within 21 days of the date of HSE’s response to your query.

Your dispute will be reviewed by a cross panel of HSE and independent people who will respond in writing to your dispute

The real concern here is that should your dispute not be upheld you will bear the cost of all the time taken to resolve it multiply by the FFI hourly rate   on top of the initial cost of infringement hourly rate (see www.hse.gov.uk/fee-for-intervention/index. htm).

If your dispute is upheld, HSE will refund invoices or part invoices you have paid related to your upheld dispute and you will not be charged a fee for handling the dispute.

Is it different if I want to appeal an improvement or prohibition notice?

Yes. The existing arrangements for making an appeal against an improvement or prohibition notice have not changed. The appeal form (ET1A) and the details of the method of making an appeal (T420: Making a claim to an Employment tribunal) are available from the HM Courts and Tribunal Service at www.gov.uk/government/publications/employment-tribunal-claim-form.

Concerns about invoices related to improvement and prohibition notices should be referred to the address provided, and should not be sent to the employment tribunal.

If you have a question about an invoice, contact:

The FFI Team Health and Safety Executive, Building 6 Redgrave Court Bootle L20 7HS, Tel: 0300 0033 190, Email: feeforintervention@hse.gsi.gov.uk.

Have your invoice number ready.

How do I pay?

HSE will send out invoices generally every two months and you will have 30 days to pay. Details about how to pay will be included on the invoice.

HSE’s Guidance on the application of fee for intervention HSE47 gives more detailed information about how FFI will work, what a material breach is, how inspectors make decisions about what action they will take when a business is breaking the law, and how queries and disputes are handled.

This is available at www.hse.gov.uk/fee-for-intervention/index.htm. The guidance is also available to purchase in print from www.hse.gov.uk/pubns/hse47.htm.

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