6th November 2013

Businesses fined more than five million under FFI

The HSE has fined UK firms more than £5.5 million for health and safety failings under its Fee for Intervention (FFI) scheme since in came in to force in October 2012.

Introduced on 1 October 2012, the HSE’s FFI cost recovery regime has been the subject of much debate in the industry.  Inspectors are charging £124 an hour for any time they spend investigating and resolving material breaches of health and safety law found during an inspection or following an accident.

The charges are payable within 30 days of the invoice date. Organisations which are found to be compliant with health and safety legislation will not be charged.

According to the findings, the breaches ranged from slips, trips and falls to not providing enough toilets or washing facilities. The sectors that received the most fines were manufacturing (38 per cent) and construction (36 per cent), while at the bottom of the list were water and waste management (3 per cent) and agriculture (2 per cent).

Commenting on the findings, Wayne Dunning, health and safety consultant, said: “This figure is surprising. We’re led to believe that we live in a world where health and safety is seemingly enforced to such a high degree that it’s sometimes ridiculed as a result. This clearly isn’t the case for all companies judging by this result.”

“It shows that the FFI scheme is a force to be reckoned with and that companies are clearly bearing the brunt of having poor, or even non-existent, health and safety measures in place.”

So what can organisations do to minimise the likelihood that they will be charged under FFI for any work that the HSE does with them? 

Prevention

It may seem obvious but compliance is key. Focus should shift to planning to ensure compliance before the inspector arrives, especially before pre-warned visits. A review should be made of the significant hazards relevant to an organisation and consideration given as to whether appropriate measures have been identified and, crucially, implemented to minimise health and safety risks.

It is important to check that paperwork is up-to-date, that evidence of checks and audits has been obtained and that there are documented regular reviews to ensure systems and procedures are fit for purpose.

Managing visits

Organisations should have a process for dealing with visits from the HSE (planned or unplanned), with the focus being on keeping them short and maintaining control.

First of all, it is crucial that security, reception or other key personnel know how to direct HSE inspectors if they arrive on-site. It is also important that an individual who has knowledge of safety management and an understanding of FFI escorts the inspector while on-site. This is an organisation’s opportunity not only to try and prevent any ‘material breaches’ being alleged by providing details of compliance but also to develop a relationship with the inspector to explain more about the business and its safety culture.

The inspector should be directed immediately into a meeting room or site office and an initial short meeting held to understand the scope of the inspection.

During the inspector’s walk round, notes should be taken of the circumstances of the inspection, including timings and any discussions or findings. This will enable an organisation to challenge any suggestion of a material breach and/or to dispute any invoices received, should that be necessary.

If the inspector raises a query, it is important that the organisation fully explains the safety measures in place to minimise risk or promises an explanation following the visit.

The inspector will be considering not only whether there is a breach but also whether that breach is ‘material’ (i.e. serious enough to require written rather than verbal advice). Organisations will only be charged for material breaches so the focus should be on trying to reassure the inspector that quick remedial action will be taken or to explain the context of the suspected breach so that the inspector does not consider a written notice of contravention to be warranted.   Remember that anything said during the visit could be written in the inspector’s notebook and used as evidence if an organisation decides to appeal against the notice of contravention or enforcement notices.

Dealing with a written notice

A process must be in place for written notices to be escalated to the relevant level of seniority and to be addressed as quickly as possible with minimum intervention from the HSE in order to minimise any charges.

The average FFI invoice for the first six months of the scheme was £464 and this relatively low figure has, led many organisations to consider that it is easier (and more cost effective) to pay the invoice rather than query whether or not there is a material breach. If the breach is obvious, this is the right approach and organisations should write to the HSE with an action plan and seek the inspector’s agreement to it.

It is important to appreciate that paying an invoice could be used by the prosecution as evidence of acceptance of material breach in any future prosecution, making it harder to defend a subsequent prosecution. Particular care should be taken by organisations that tender for work when deciding whether or not to accept a material breach because it is likely that they will need to declare these on future applications for work.

The HSE’s 12-month review of the scheme, due to be published in January 2014, may provide it with the opportunity to look again at achieving the tricky balance between its requirement to self-fund with the importance of maintaining an advisory relationship with the organisations it regulates, to ensure that high standards of safety are maintained.

For any queries regarding FFI do not hesitate to contact our health and safety consultants on the advice line 0845 459 1724.