Fee For Intervention
In the first six months of the FFI’s introduction, inspectors issued 5,766 invoices across a wide range of industries. The HSE’s six- month report records that in the second quarter, 60 per cent of HSE inspections resulted in an invoice. The number of invoices and amounts charged is rising quarter on quarter and organisations should therefore be prepared to face scrutiny.
Organisations must remember that, while those in senior positions may be aware of FFI, those who will be greeting inspectors will more often than not be site managers, factory foremen and others in site-based positions. 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?
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.
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.
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.
A short meeting should be held at the end of the visit with the inspector to clarify the findings from the visit and agree action points. These may include the escalation of the notice within the organisation.
The average FFI invoice for the first six months of the scheme was £464 (bringing in £2.675 million) and this relatively low figure has, we understand from interviews, 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
