In the past, when an HSE inspector visited a workplace, advice and encouragement could be given. Where the inspector found flagrant disregard for safety, action would be taken. But in many cases, the inspector would suggest sources of information and approaches to take to improve safety. But times change, and money is tight, so the HSE are expected to support themselves.
One means of doing this, introduced in 2012 is the Fee for intervention (FFI). The principle is that organisations that break health and safety laws should pay for inspections, whilst those complying with the law don’t.
This would be fine if it was always obvious how to comply with the law. Take the case of facilities company, OCS Group UK. Their many contracts include mowing the grass around Heathrow airport. The site has many small patches of grass, some on inclines, somewhere equipment has to be lifted over crash barriers to access the location. As a result, they carefully selected mowing equipment with the lowest vibration levels that could be transported and operated safely and still achieve the task. They assessed exposure to staff and put control measures in place, including health surveillance. At other sites, HSE inspectors had agreed the approach met the requirement to reduce risk as low as is reasonably practicable (ALARP).
When one member of staff reported hand-arm vibration syndrome (HAVS) symptoms as part of this surveillance, they submitted a RIDDOR report. This prompted a visit from the HSE, followed by a Notice of Contravention (NoC) – and an FFI bill. The HSE argued that ride-on mowers should be used. The bill wasn’t that much for a large organisation such as OCS (less than £2000), but the dilemma was that if they paid the bill, they were accepting that their approach to HAVS management would need to be changed – and this was something they believed would not be practical, would be very expensive, and would introduce more risks than it reduced (for example, operating on inclines, and manoeuvring heavier equipment).
The case rumbled on for some time through the HSE appeal process. The final stage of the appeal was for two HSE inspectors and an independent person to judge the case. OCS had two problems with this. First, this made the HSE the prosecutor, the judge, the jury, and the appeal court. Even if the independent person agreed with OCS, the HSE inspectors could overrule. The second problem was that the HSE were not obliged to let OCS know what evidence they were making their decision on.
Having exhausted the HSE process, OCS asked the High Court for a judicial review. The HSE said it would defend the challenge, but asked for a delay whilst it tried to negotiate a settlement. More months passed, and OCS asked for their day in court. A date was set – but a month before the hearing the HSE withdrew the NoC and the FFI invoices, and agreed to review their processes.
From 1 September, a new process is in place. The appeal panel will no longer include HSE personnel. Instead, it will be chaired by a lawyer from the Attorney General’s Civil Panel of lawyers, with two other independent members “with practical experience of health and safety management.” Details of how these two will be selected are not yet clear, but trade unions and industry bodies are likely to be involved.
A second victory for businesses such as OCS is that the HSE will now make available all the evidence that will be put in front of the appeal panel, and will allow organisations to respond to that evidence and make written submissions explaining why the NoC or the FFI bill is wrong.
However, one part of the battle has been lost. Many participants in the consultation on the new rules asked that where an FFI challenge was successful, the HSE should have to pay back the organisations costs. Unsurprisingly, this is not part of the new arrangement.