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Law for Business

Knowhow - guidance - precedents

30 MAY 2012

Developments in Occupational Health and Safety

This newsletter provides four overviews of issues that are of relevance to the field of occupational health and safety. The first describes the work-related fatal injury statistics for 2010/11, the second outlines changes to RIDDOR and the winding-up of the HSE's Infoline service, the third is an overview of the government's new Health and Safety Framework and the fourth provides further details on one of the most significant aspects of that framework, namely the policy of HSE charging fees for interventions made by its inspectors.

1.  Fatal Injury Statistics: 2010/11

The HSE has published provisional figures for the number of work-related fatalities that occurred between 1 April 2010 and 31 March 2011. A total of 171 workers died during that period (120 employees and 51 self-employed workers), which is an increase of 24 (or 16%) compared to the 2009/10 figure of 147 deaths, and equates to a rate of 0.6 fatalities per 1,000,000 workers. However, despite this increase, 171 deaths is 17% lower than the average of 205 deaths per year over the last five years, and the rate of 0.6 is 14% lower than the five-year average of 0.9.

If incidents connected to the railways are excluded, 68 members of the public died as a result of accidents related to work activities.

Fifty of the worker fatalities occurred in the construction sector, an increase of nine (or 22%) on the 2009/10 figure of 41 and representing a rate of 2.4 deaths per 100,000 workers. Thirty-four of the worker fatalities occurred in agriculture (a rate of 8%), 27 in manufacturing (a rate of 1.1%), 47 in the service sector (a rate of 0.2%) and nine in the waste and recycling industry (a rate of 8.7%).

Concerns have been expressed by trades unions and others that the increase in fatal injuries over the last year has come at a time when the economy is stagnating, and that in the past, injury rates have tended to increase as economies come out of recession. Allied to this, the HSE is planning to reduce the numbers of inspections undertaken in many sectors, including agriculture, most manufacturing and services (see under 3. below).

2.  End of Infoline and Changes to RIDDOR

Infoline

In what is being seen by many as a controversial move, the HSE's Infoline, its free telephone advice service, which has existed in various guises since 1996, was closed on 30 September as part of HSE's efficiency drive.

In the absence of Infoline, the HSE is advising anyone seeking health and safety advice to use its website. In circumstances where people are unable to locate the information they are seeking via the website, or if they feel they need to speak to someone for more specialist advice tailored towards their particular circumstances, the HSE advises that they can use one of the commercial health and safety telephone services or seek assistance from a health and safety consultant.

RIDDOR

The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR) require employers and the self-employed to report certain work-related incidents to the health and safety enforcing authorities (HSE and local authorities), which is done via the Incident Contact Centre (ICC). Such incidents include fatalities, major injuries (as defined), injuries that result in workers being unable to perform their normal work for more than three days, accidents that result in members of the public being taken to hospital for treatment and certain diseases, if contracted by employees as a result of their work.

The HSE has recently changed the incident reporting arrangements, and since 12 September 2011, only fatal and major injuries and incidents can still be reported by telephone. All other reportable injuries and incidents must now be reported online using one of seven forms, which are available on the HSE's website - see www.hse.gov.uk/riddor/report.htm. Incidents can no longer be reported by email, post or fax.

The online forms are:

●        F2508 Report of an Injury

●        F2508 Report of a Dangerous Occurrence

●        F2508A Report of a Case of Disease

●        OIR9B Report of an Injury Offshore

●        OIR9B Report of a Dangerous Occurrence Offshore

●        F2508G1 Report of a Flammable Gas Incident

●        F2508G2 Report of a Dangerous Gas Fitting.

The telephone service for reporting fatal and major injuries is to the ICC on 0845 300 9923 (opening hours Monday to Friday 8.30am to 5pm).

3.  New Health and Safety Framework

In October 2010, a report by Lord Young, Common Sense - Common Safety, was published, which made a series of recommendations for reducing the burden of bureaucracy on business, applying common sense to everyday decisions, and ensuring health and safety is taken seriously by employers and the general public. The government accepted all the recommendations made, and responsibility for their implementation has since passed to Chris Grayling, Minister for Employment.

As a next step, in March 2011, the government published Good Health and Safety, Good for Everyone, which sets out the next steps for reforming the health and safety system in Great Britain. The report states that the government's intention is to ‘shift the whole focus of our health and safety regime to a lighter touch approach, concentrating efforts on higher risk industries and on tackling serious breaches of the rules'. Key aspects of these changes include the launch and development of the Occupational Safety and Health Consultants Register (as described in the March 2011 Jordans Health and Safety Management Newsletter) and actions seeking to simplify health and safety legislation and guidance, and in doing so ease the burden on business, including an independent review of health and safety regulation aimed at simplifying the law. This review, chaired by Professor Ragnar Löfstedt from King's College London, is scheduled to make recommendations by autumn 2011. However, the aspect of the proposals that has proved most controversial is the new Health and Safety Framework, in particular because of its implications for inspection activity by the HSE and local authorities, and for cost recovery, as described below.

HSE approach under new Framework

The Good Health and Safety, Good for Everyone report draws a distinction between major and non-major hazard industries. The former includes the chemical and offshore oil sectors, and here there are no plans to change the current level of regulatory oversight. Non-major hazard industries are essentially everything else that is regulated by the HSE, and here the HSE is going to change its approach significantly, primarily in three ways:

1.       Joint working with industry

The HSE is going to increase and expand the joint working initiatives it currently undertakes with industry, in order to promote better health and safety and pass on good practice. The HSE will also develop initiatives to help businesses (in particular low-risk small businesses) meet their health and safety obligations, eg straightforward computer-based risk assessment for low-risk businesses.

2.       Targeting and reducing inspections

The report groups non-major hazard industries into one of three categories, which will determine the approach to inspections:

(a)     Sectors that present comparatively high-risk and for which proactive inspection is required: these include construction and some types of manufacturing. Here proactive inspection will continue.

(b)     Sectors that present comparatively high-risk but proactive inspection is not required: these include agriculture, quarries and health and social care. Here the HSE intervention activity will continue but not via proactive inspection, eg through joint initiatives with industry.

(c)      Sectors that present low risks and proactive inspection is not required: these include low-risk manufacturing (eg textiles, clothing, light engineering), transport and local authority administered education provision. Here proactive inspection will cease.

Through this approach, the intention is for the HSE to reduce its proactive inspections by one-third overall. The HSE will work closely with industry bodies to manage and control specific risks, and will expect industry to take the lead so that the HSE can target its activities on areas where they are most needed. Also, the government is expecting local authorities to take a similar approach in terms of their health and safety regulatory role, and is expecting to see the number of local authority inspections reduced by at least one-third and greater targeting where proactive inspection is used.

The plans have proved controversial. Trades unions in particular have raised concerns about proactive inspection being removed from a large number of workplaces, and the potential for standards to deteriorate and accidents to increase.

Note that the HSE's approach to its reactive work (such as investigating complaints and accidents) will not be affected by the changes.

3.       Cost recovery for breaches of the law

The government is proposing a change in the law to enable the HSE to recover the costs it incurs when there is a material breach of health and safety law. This is a significant development and the ‘fee for intervention' policy, and the proposals that accompany it, are described below.

4.  Fee for Intervention

In its Good Health and Safety, Good for Everyone report, the government makes clear its intention to ensure that the costs associated with serious breaches of health and safety law are borne by those responsible and not by the taxpayer. It is the policy of both the government and the HSE board that the HSE will be required to recover its costs where:

●        a business has breached health and safety law, and

●        a requirement to rectify the breach is formally made in writing.

To implement this approach, the HSE is proposing to replace the Health and Safety (Fees) Regulations 2010 with new regulations, which would place a duty on the HSE to recover the costs of its interventions under the Health and Safety at Work etc Act 1974 and health and safety regulations. This would apply across Great Britain. The HSE is currently consulting on how cost recovery could work - the consultation period ends on 14 October 2011.

The proposals state that a ‘material breach' occurs ‘when, in the opinion of the inspector, there has been a breach of health and safety law which requires them to make a formal intervention', and a formal intervention arises when a requirement to rectify a breach is made to the duty holder in writing (which includes emails, letters, improvement and prohibition notices and prosecution up to the point where an information is laid (and in Scotland, when a case is referred to the Procurator Fiscal)). Costs would be recovered from the start of the intervention during which the material breach was found, up to and including the point where the activity in relation to the breach has been concluded and, as well as the initial intervention, would include any necessary follow-up activity such as site visits, telephone calls, specialist assistance, writing of letters and reports and issuing notices. Note that ‘fee for intervention' will not apply to technical (non-material) breaches of the law, ie breaches that do not require a formal intervention.

The hourly fee that would apply has been estimated at £133 (VAT does not apply). The total costs will obviously depend on the circumstances and the extent of the investigation required; however, in its consultation document the HSE provides the following estimates of the potential averaged costs for intervention activity:

Intervention

Estimated Averaged Costs Recovered

Inspection with no action taken

No costs applicable

Inspection resulting in a letter

Approximately £750

Inspection resulting in an Enforcement Notice

Approximately £1,500

Investigations

Ranging from approximately £750, to several thousands of pounds and, in extreme cases, to tens of thousands of pounds

To recover costs, the HSE's proposal is that it will invoice the business and expect payment within 30 days. It is anticipated that invoices will be issued on a monthly basis as costs are incurred, rather than collating the costs into one invoice when all work is complete. To resolve any disputes, the proposal is that the HSE will implement a queries and disputes resolution procedure, and also that the HSE will seek to recover the costs of handling disputes should the dispute not be upheld.

The following points should also be noted:

●        Fee for intervention will not apply where the HSE already recovers its costs for intervention activity under an existing permissions regime, as exists within the major hazard industries including offshore gas and oil installations, licensed nuclear installations and top-tier COMAH sites.

●        The proposals do not currently extend to health and safety regulation undertaken by local authorities. However, this is an issue on which the consultation document is seeking views, and it may be that the proposals will subsequently be amended to include local authorities.

●        The self-employed will not be subject to a fee for intervention unless they expose people other than themselves, such as their employees or members of the public, to risks to their health or safety.

The government believes that fee for intervention will ‘provide a deterrent to those who would otherwise fail to meet their obligations and provide a level playing field for those who do'. However, not everyone shares the government's views, and concerns have been expressed by businesses and others that the proposals are unfair and could have significant financial implications, particularly for small and medium-sized businesses. Moreover, there is a concern that the proposals could fundamentally change the nature of the relationship between the HSE and businesses, who might in future question whether requirements imposed by HSE inspectors are being applied primarily on the basis of risk, or primarily with the aim of raising revenue for the HSE.

The fee for intervention proposals could potentially apply from April 2012. The consultation document can be viewed at www.hse.gov.uk/consult/condocs/cd235.htm.

Ian Bollans BSc (Hons), CMIOSH and David Preece BSc (Hons), CMIOSH

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