The Health and Safety executive have decided to postpone FII until the next ‘red tape day’ in October 2012 (FFI is the scheme by which HSE hopes ot be able to ‘recover’ up to £40m per year from businesses which have ‘materially breached’ health and safety regulations).

The scheme had been set to start on 6th April 2012 and has been in trial in most regions over the past few month, charge out rates are set at £124 per hour.  However, the regulator has announced that further discussion of “technical details” are required before the scheme can be launched. Owing to parliamentary process this means it  is unlikely to come in now until October 2012.

The HSE’s programme director, Gordon MacDonald, said: “The Government has agreed that it is right that those who break the law should pay their fair share of the costs to put things right – and not the public purse.

“Discussions are still taking place on the technical details of the scheme, which we expect to conclude soon. Therefore, FFI will not be introduced in April but at the next available opportunity, which is likely to be October 2012.”

The HSE said it will take advantage of the extra time to work further with businesses to improve their understanding of the scheme and how it will affect them.   All those who will be involved in implementing it are involved; for example, inspectors who uncover material breaches, or contraventions – which will be the trigger for costs recovery when the scheme goes live – are explaining to the duty-holders what this means and what the implications for them would be if the scheme were already in force.

Detailed guidance for employers and organisations will be available on the HSE’s website ahead of implementation.  More iformation can be found on the HSE website; http://www.hse.gov.uk/aboutus/fee-for-intervention/index.htm

The Regulations are to be updated from April 6th 2012 following a verdict by the European Commission that the omission of two terms from the 2006 Regulations has allowed too many types of ‘low risk’ works to be exempt from the regulations for notification, medical examinations and record keeping.

The effect is to create a new category  of work entitled ‘Notifiable Non Licenced Work’. The requirements will be clarified in guidance but are likely to be as follows;
·    Notify to HSE before work commences
·    Carry out medical examinations once every three years for exposed staff
·    Keep records of work exposure
Please note that there is a 3 years transition period before measures concerning medical examinations take effect. for more information please see; http://www.hse.gov.uk/consult/condocs/cd237responses.pdf

Current guidance on Non Licenced work with asbestos
Under Regulation 3(2) you do not need a licence to work with asbestos if:
·    the exposure of employees to asbestos is sporadic and of low intensity (i.e. the concentration of asbestos in air does not exceed 0.6 f/cm3 measured over a 10 minute period);
·    the control limit is not exceeded (0.1 f/cm3 averaged over a 4 hour period);
and

• the work involves short, non continuous maintenance activities;
• the removal of materials in which the asbestos fibres are firmly linked in a matrix; or
• encapsulation or sealing of asbestos-containing materials which are in good condition; or

• air monitoring and control, and the collection and analysis of samples to ascertain whether a specific material contains asbestos.”

We have been reviewing case law of late and, as part of our very busy round of Breakfast and Lunch club presentations, have delivered several talks on this issue.
For those who are unable to make these clubs we thought a quick summary of our discussion would be useful (http://www.outsource-safety.co.uk/breakfast-clubs.html).
Corporate manslaughter or not?
We have spoken on this subject before and have included it in our updates.  Its seems that more and more small businesses will face the spectre of corporate manslaughter over the coming years with the second case about to be heard in Birmingham against Lion Steel Equipment.
As we have previously stated, the purpose of the regulation was to address large concerns where the identification of a ‘controlling mind’ within the business would otherwise have proved difficult.  However, experience now seems to tell us that any small business can expect to have this legislation used against them in the event of a death.
If we are to accept this then it would be useful for each of our clients to be a little more aware of what we can learn in terms of the case which has already been heard, Cotswold Geotech.
First lessons
To begin at the beginning, you must first have made a gross failing and Senior Management must have played a significant role in that breach.  However, someone has been killed and although you may take some comfort through senior management not being directly involved this is often not a good source of defence.
Why? Well, you can delegate your responsibilities but not the accountability.  Even if you have a well resourced and trained safety manager you would still need to have ensured that they are carrying out their duties effectively or it would indeed be a failing of senior management in not ensuring that safety is being properly managed.

Help! I can’t always be to blame (can I?)
No, you shouldn’t be feeling that whatever you do you can always be punished and there are some simple steps you can take to protect yourself, your business and your reputation.

Step by step
Gross breaches come far below the standards which one would reasonably expect so make sure you are doing things to a recognised standard, for example;
1. Approved Codes of Practice (ACoPs as issued by HSE)
2. British Standards
3. Industry specific guidance
4. Industry bodies which provide guidance for your industry
5. Directors Codes of Practice issued by HSE and the Institute of Directors (IoD)
You should also be able to clearly demonstrate your good practice at Senior Management level through;
1. Board meeting minutes which deal with H&S issues;
2. Appointing a Board member specifically responsible for H&S;
3. Showing evidence of where Board level intervention into H&S have been made through site visits, behavioural observations or similar.
Now is the time to consider what you are doing and to make the simple, incremental changes which may one day prevent an accident from occurring or, at least, give you access to some form of defence should the worst happen.  If you would like to discuss this in more detail please contact your consultant to review your current arrangements or make contact with Roger Hart directly on 01453 800102.

Professor Ragnar Löfstedt’s review of health and safety regulation was published on Monday 28th November. On the same day the Government issued its response to the report and we have summarised the main recommendations below.

The Löfstedt’ Report follows on from the recommendations of Lord Young’s Report, Common Sense Common Safety and seeks to expand on its work to reduce the regulatory burden on business. Professor Löfstedt is the Director of the Centre of Risk Management at King’s College London.

The Government’s response identifies six key areas where it will take action as a priority:

• Exempting the self-employed from health and safety law if their work activities pose no threat to others. The Government claims that this will bring UK regulation more in line with other European countries, and cut unnecessary red tape for around one million people. It is scheduled to be in place by 2013 but will be complicated to enforce for those self employed people working on larger sites and workplaces as it is likely that clients and main contractors will still want ot see their reputation and safety record protected.
  The Health and Safety Executive to gain powers to direct local authority health and safety inspection and enforcement, and to become the “Primary Authority” for multi-site national organisations. This should significantly reduce uncertainty as to enforcement in particular. However the Government qualified its backing by warning of an “even more centralised approach”, so it remains to be seen whether there will be a fundamental shift in power from local authorities to the HSE bringing with it the possibility of the £124 per hour Fee For Intervention being levied on all UK exterprises regardless of size or enforcing authority – a worrying as[ect for smaller SME’s.
• Sensible civil procedure and liability rules. Professor Löfstedt found that taken as a whole the health and safety regulations were appropriate. However, two of his recommendations are being taken up by the Government as a priority. Firstly, the Review suggests that the standard disclosure lists found in the Pre-Action Protocols are being interpreted in an overly restrictive fashion by firms and advisors, encouraging a bureaucratic approach to health and safety documentation which is unwarranted. Löfstedt wants the original intention – to encourage the sharing of information – to be clarified and restated to ensure that firms are not encouraged to believe that the absence of documentation is in itself a ground for liability. Secondly, Löfstedt recommends that each regulation should be reviewed to ensure that any strict liability rules are there because they are required as a minimum by European law, and replacing them by the more proportionate “reasonable practicability” test when European law does not dictate no-fault liability.
• Reviewing the Approved Codes of Practice. The report suggests these documents are too complex and “legalistic”. The aim is to ensure duty-holders are informed of the scope of their obligations in plain English. The first phase of this is to be completed by the HSE in June 2012 and duty-holders will be informed then of impending changes.
• Consolidating sector-specific regulation. The Government has accepted that the piecemeal regulation of high-risk industries using separate regulations is largely burdensome and confusing. This task is to be completed by April 2015. Professor The report also suggests a small number of unnecessary regulations which the Government plans to scrap following consultation. Through these means the Government plans to cut the total number of regulations with which businesses have to comply by 50% but the true impact of this is likely to be low when clear duties of care remain.
  
• Engagement with the EU regulatory process to ensure that law is risk-based and evidence-based. In particular the Review recommends that there should be a European Parliament Committee to scrutinise European health and safety regulation. The Government suggests that British diplomacy has already achieved a breakthrough over the summer in causing the establishment of an impact assessment unit within the European Parliament.

Comment by Roger Hart, MD C&G Safety

Despite the headline grabbing figure of 50% of total regulations will be removed the impact f business is unlikely to be felt. The spectre of No win No fee and past experience are likely to encourage those businesses large enough to make changes in their arrangement to be slow to react to any reduction in legal burden.

Self employed people could see dome benefit but on higher risk activities where these persons are engaged to work for larger clients we will be surprised to see a change from current requirements as the systems in place are well established and the potential for vicarious liability remains.

This is not to say that the report will not have an impact and anything which reduces burden whilst maintaining our good national safety record is a positive step, particularly in the current economic climate. However, it is worthy of note that the report will do nothing to address the issue of spurious no win no fee claims and the industry which surrounds it and has done little to investigate the ‘gold plating’ of EU Regulation as it is translated into UK law.

Copies of the Löfstedt Report and the Government’s response can be found on the Department for Work and Pensions website: http://www.dwp.gov.uk/policy/health-and-safety/

The HSE Board today (7 December) agreed that from April next year the HSE will charge duty-holders who materially breach health and safety law an hourly rate of £124 for its intervention. This has been reduced slightly from the original consultation figure of £133 per hour and the cost will also now be counted from when a letter or e-mail recording the duty-holder’s breach is sent rather than applying from the start of the visit.

The recent consultation on the fee-for-intervention scheme (FFI) – part of the Government’s ‘Good health and safety – good for everyone’ framework unveiled in March gained 300 responses and the HSE also held face-to-face dialogue with some 80 trade associations and companies.

Seven key concerns were identified as being raised by the majority of consultees:

• A change in priorities by the HSE in order to maximise its receipts;
• Damage to the constructive relationship between the regulator and business;
• The definition of ‘material breach’ and reliance on individual inspectors’ opinions, or judgements;
• The ‘trigger’ for implementing FFI;
• Whether or not local-authority regulators should be included in the scheme;
• The financial impact on businesses – particularly SMEs; and
• The integrity of the disputes process.

Gordon MacDonald, programme director for the scheme, told the Board that these concerns were common to most respondents, whether they were for or against. Some of them, he said, could be addressed fairly easily – such as by issuing guidance on what constitutes a material breach, and translating the regulator’s Enforcement Management Model (EMM) into ‘lay’ language so that people can better understand how inspectors operate within defined policies and procedures when making judgements.

As the majority of respondents were against including Local Authorities within the scope of the scheme, the Board agreed that they would be excluded.

Comment from Roger Hart, MD, C&G Safety
The concerns we have centre on the following key issues;

1. Business have been ‘swopped’ between LA and HSE enforcement over the years, this is now a two tier system with some businesses being threatened by the potential for FFI bills and others, who operate exacly the same business but remain under LA control, not having to contend with this, is this fair?
2. As HSE comes to rely on the receipts from FFI fees, will this bring a difference in enforcement styles? Inspectors will surely have some pressure on them to produce a number of receipts within a region with budgets having been so stretched over recent years.
3. How will the relationship between regulator and the regulated be affected by this? Up until now an Inspector was there to see risks controlled for the benefit of all, now they could be adding to the cost benefit analysis in a negative way. If it costs £5,000 to control the risk and the FFI bill comes to £2,500 where does that leave the business and its employees in terms of cost benefit analysis?
4. How will ability to pay be accounted for (if at all)? Two businesses in the same sector with the same number of employees can make vastly different profits. Similarly, some businesses may simply be unable to pay in the current climate but this will be complex knowing that Treasury rules will bind HSE t recovering it full costs.
5. Who will monitor the process to ensure it is both fair and equitable? HSE cannot be both judge and jury but who will be best placed to decide on what is fair?

We must put this in perspective, it is likely that the businesses affected will be less than 1% of all UK enterprises but, with talk of £40m being a likely figure for FFI receipts in the first year, the impact on those unlucky enough to see the scheme working first hand could be significant. Our advice is to review your Enforcing Authority, if you’re a lower risk business and have been passed to HSE from LA control perhaps its time to request to return.

C&G Safety & Environmental Ltd is delighted to announce successful registration with the AIC as Dangerous Goods Safety Advisers.

The AIC were informed by members that it is difficult to locate a DGSA because a register or centralised information source does not exist and in order to facilitate this AIC have set up a DGSA register so that a company can make contact with one if they require.

Benefits to the Agricultural industry of the DGSA Register are:
• Ability to locate a DGSA within a local area
• Ability to locate a DGSA by specialist area
• Web base live data source of DGSA’s so information is up to date
• Meet due diligence requirements in the areas of dangerous goods
• Save time and money

C&G Safety & Environmental Safety are pleased to announce that their specialist in Road Transport has successfully been granted membership to the Association of Industrial Road Safety Officers..

John Sennett has worked in the Road Transport industry sector as a Health and Safety Consultant and Road Transport Safety Adviser and has long been a Road Safety campaigner.

AIRSO is a registered charity whose aim is to provide a platform for all who work in the wider area of road safety, whether that be, just to name a few, as a road safety officer, an emergency service worker, a driving instructor, a road or highways engineer, collision investigator, or in vehicle safety product design or development

The days of inspectors working through companies alphabetically or just popping in when they are in the neighbourhood are now long past. The HSE now simply doesn’t have the resources necessary to implement this sorts of inspections regimes. This is further strengthened by Lord Youngs report, which HSE has adopted in terms of lower risk businesses, meaning that smaller offices and similar premises will now not be visited at all.

The short story is that as long as you avoid the attention of HSE through not having accidents (or upsetting staff, neighbours or others who might wish to report you) you shouldn’t see an inspector at all, however…

HSE is looking at ways to recoup some costs and one of the options is to charge those businesses which it does visit some money – perhaps a significant amount depending on the risks found, time involved and staff required to deal with the issue.

Heavier industry and clients involved in higher risk activities such as construction are likely to feel the pinch first. Charges could start with having to send a follow up letter and if specialist inspectors are called in to deal with a particular risk then costs will naturally escalate – we’ll keep you posted on developments as we find out more but don’t expect this to happen overnight – it could require new legislation in order for this to occur.

Not too much of a change here but certainly something worth being aware of. Whilst proposals are yet to be adopted to allow a 7 day period before reporting an absence following injury (instead of the current 3 days) there are some smaller changes being implemented in the name of cost saving.

Instead of reporting injuries over the phone to the Incident Contact Centre you will now be required to use the online system at www.riddor.gov.uk this also includes dangerous occurences but not fatalities or major injuries such as broen bones or amputations.

The report should be made using the appropriate form:
• 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; or
• F2508G2 Report of a Dangerous Gas Fitting.”

Please note that HSE intends to focus much of its inspection resource on following up on accident reports submitted to it and this means its vital that you enter reports accurately and within time lmits to avoid raising the ire of an Inspector.

Two companies and a contractor have been prosecuted for releasing asbestos fibres during an office refurbishment project in Birmingham city centre. This story highlights the need for sound advice as from experienced and competent CDM Coordinators.

The building – at 114-116 Colmore Row – was owned by Evanacre Colmore Row Ltd which together with project managers Marchment Consulting, hired builder Roland Morewood to carry out work in January 2010.
The work involved upgrading a lift, An asbestos survey held by Evanacre showed that the area contained asbestos insulating board. In spite of this the firms hired an unlicensed contractor, Roland Morewood to remove it in return for a significantly lower fee than a licensed contractor would have charged.

When independent lift engineers arrived at the site they found pieces of asbestos insulating board spread around the lift shaft area and rightly refused to carry on working. The HSE was informed and its inspectors subsequently discovered that asbestos fibres had spread to several parts of the building.
Air tests taken on several floors of the premises – a building which was operational and occupied throughout the refurbishment – revealed significantly high levels of asbestos fibres.

Further investigation revealed the presence of asbestos in several vacuum cleaners used around the building. Following this discovery HSE stopped all workers from going into the building until it had been decontaminated. 

Asbestos insulating board was also found stored in Roland Morewood’s van, which itself was heavily contaminated.

HSE principal inspector Richard Lockwood commented:
“Asbestos is the biggest cause of occupational deaths in the UK, with an estimated 4000 people dying every year from related diseases, such as mesothelioma and lung cancer.

 “Evanacre Colmore Row had an asbestos survey, which clearly showed that asbestos was present in the lift. Marchment Consulting, which has expertise in building work, should have known how to deal with asbestos and materials containing its fibres in refurbishment projects.

”

“These companies decided not to use a licensed contractor to remove the asbestos insulating board but to get the work done over a weekend by an unlicensed contractor for a tenth of the cost. Asbestos fibres were found to be at significant levels and, if the alarm had not been raised, it is likely that people working on the refurbishment and office workers would have been breathing these fibres for some time.”

Evanacre Colmore Row Ltd and Marchment Consulting Ltd both pleaded guilty before Birmingham magistrates on 9 August to breaching regs.11(1)(a) and 16 of the Control of Asbestos Regulations 2006. Each was fined £7000 and ordered to pay £1500 costs. 

Roland Morewood, of Mapleton Road, Hall Green, Birmingham, pleaded guilty to breaching regs.8(1) and 16 of the Control of Asbestos Regulations 2006. He was fined £1000 and ordered to pay £823 costs.

Both companies cooperated fully with the HSE investigation and Evanacre paid £85,000 for the clean-up operation following the contamination. They also said it had been a mistake to use an unlicensed contractor as they believed the lift contained asbestos cement, rather than insulating board – even though the asbestos survey made clear it was the latter. It is worthy of note that Roland Morewood was told it was asbestos cement and was not shown the survey. However, the companies also provided information to the HSE to enable it to track down Morewood’s van, which had been abandoned by the builder – with the keys inside – in a Birmingham side street. The HSE hired a local licensed asbestos contractor to decontaminate it.

Inspector Lockwood emphasised:
“It is against the law for anyone to remove asbestos insulating board without a licence. Roland Morewood should never have carried out the work and did not take enough precautions to prevent the spread of asbestos fibres.”