Lawyers have questioned the legality of a controversial scheme to make companies that break health and safety rules pay for the cost of investigations, after the Health and Safety Executive confirmed it would be introduced on 1 October, write Stephen Cousins and Chloe Stothard.
Under the fee for intervention arrangement, the HSE plans to recover the costs of investigating and inspecting health and safety breaches from the companies that committed them.
But Chris Green of law firm Weightmans said: ”Permitting a prosecuting body like HSE to charge these fees could be in contravention of human rights law. Legally speaking, a material breach equates to a criminal offence, which could result in a proper enforcement notice and/or a prosecution. Now they have introduced this alternative enforcement: ‘we inspect and
fine you if you are in breach of the law’.
“A firm could easily find itself being prosecuted by the same body that can charge it for the information it gives to them. The HSE also has a financial incentive to find fault with H&S on sites. The argument legally is that the HSE is not independent because they have a financial incentive in finding fault.”
Peter O’Connell, policy manager at the Federation of Master Builders, said: “The idea of issuing fines should work in theory, but we’ve heard complaints in connection with the trials that have been conducted and some of the large fines charged even for very minor issues such as issuing letters. There are serious and complex issues that need to be examined in detail before October.
SME contractors fear that the HSE’s focus on smaller sites will mean they end up paying most of the intervention fees. Mike Smith MCIOB, managing director of Corniche Builders, said: “I see issues with the scheme being implemented with smaller contractors. Small firms are being targeted because they are responsible for most H&S infringements, but many just don’t take their responsibility seriously and cost recovery over safety breaches is no exception.
“Cost recovery will be difficult and many smaller builders will totally ignore it. It could also open up a new insurance market, where contractors have to pay new premiums to cover possible fines.”
Adding up the cost of safety failures
Under the fee for intervention scheme, from October 1 the HSE will recover the costs of investigating and inspecting health and safety breaches from the companies that committed them. The HSE would charge its inspectors’ time at £124 an hour, with fees applying to any contravention that resulted in the inspector sending a letter or email to the company involved.
Companies would have to pay within 30 days of the notice. The fees are in addition to any statutory fines.
An impact assessment published by the HSE said inspections that found breaches which resulted in a letter or email, but not a prohibition or improvement notice, would last about three quarters of a day and cost about £750. Inspections triggering an improvement or prohibition notice could cost £1,500.
An investigation lasting four days could cost the firm investigated about £4,000 if it was found to be at fault.
However, the figures were based on the original hourly cost of £133, later revised to £124.
