When an Inspector Calls I


n 2015, the HSE started a programme in which it targeted the waste industry for inspections to


assess health and safety standards. In September 2017, the HSE warned waste businesses to expect unannounced safety inspections from October 2017 onwards, given the sector has one of the poorest health and safety records across all industries. Operators really do need to be aware of the potential implications when an inspector calls.


An inspection by the HSE can be costly and time consuming. At best, work on site will stop, employees may be interviewed and management asked to produce and explain their policies and procedures relating to health and safety. At worst, the inspection may result in a prosecution in the criminal courts. It should be borne in mind that a prosecution for breach of health and safety law can be brought, not only when there is an accident in the workplace, but simply when a risk to health and safety is identifi ed. As highlighted in my last article (ROJ, Ed 1), the level of fi nes that the criminal courts impose for health and safety breaches has risen dramatically over the last 18 months.


Even if the HSE does not decide to prosecute a company for a breach of health and safety legislation there are a range of other enforcement options available to the HSE including; improvement notices, prohibition notices and cautions. Whichever enforcement option is pursued it is likely to have a signifi cant impact on the business which is inspected. Improvement notices are published online by the HSE and any form of intervention will, inevitably, have an impact upon commercial reputation.


T e HSE are also obliged to charge a ‘fee for intervention’ (“FFI”) when it identifi es a material breach of health and safety law that requires the HSE to issue a notice in writing to the duty holder. T is means that the HSE are entitled to recover the costs they it incurs in relation to the inspection and any action it takes. Under the scheme the HSE charges an


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hourly rate of £129 and invoices raised must be paid within 30 days. FFI has been hugely controversial. A dispute procedure did exist in which the recipient of an FFI notice could challenge the basis upon which the notice was issued. However, the challenge was to a panel made up of two HSE members and one independent person. It is not surprising that many questioned the independence of the panel and a judicial review was launched challenging the procedure.


In response to the issuing of the judicial review proceedings the HSE launched a public consultation on potential changes to the FFI system. On 31st August, the HSE announced a new scheme by which recipients can challenge FFI notices. Challenges will now be heard by a fully independent panel made up of a lawyer and two other members who have experience in the management of health and safety. HSE representatives will no longer be able to sit on the panel.


Whilst this change is welcome,


a number of recipients of FFI notices may simply choose to pay immediately in order to have matters settled quickly. However, caution should be exercised in this regard. Acceptance of an FFI invoice can be seen as an admission of guilt and may have an impact on whether the HSE decides to charge a recipient with an off ence.


T e HSE have extensive investigative powers so co- operation with inspectors is essential. However, when an inspector calls you should be aware of the potential implications. Consultation with a legal professional at an early stage may well save you money and protect your reputation in the long run.


Austin Welch is a specialist regulatory barrister who practices from Lincoln House Chambers in Manchester. He is well known for his expertise in Health & Safety & Environmental Law.


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