DEALING WITH THE HSE INSPECTOR

Karl Tindale – CMIOSH, MCIOB, CMaPS, AIEMA

Intro

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Experiences

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Employer

✓ Safer Sphere are the award winning provider of choice for competent, professional and holistic Construction Health & Safety Solutions with a difference.

✓We are specialist CDM Advisor in all areas of health and safety in construction including Construction Design & Management (CDM) and Project Health and Safety (H&S).

✓Our focus is to assist the industry in compliance through best practice, to provide simple and innovative solutions to a clients needs.

✓ As one of the leading CDM consultants and Construction Health & Safety consultants we are driven by our commitment to clients, our belief that we can always improve on what has gone before and that we can truly deliver the ability for us all to operate within a Safer Sphere.

✓We operate nationally from our Merseyside office and have the ability to deliver our CDM services throughout the UK.

The aim of the Presentation is to provide delegates with a Best Practice Guidelines for Dealing with HSE

Inspectors

Presentation Aim

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Learning Outcomes

By the end of the presentation members will:

• Understanding the plans behind inspections

• Know about HSE website and guidance for enforcement

• Understanding about how enforcement decisions are reached

• Key sectors facts relating to Fees for Intervention

• Options to Challenging Notices or FFI

• Latest information from courts about reducing the fines

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Overview

▪ Who will they visit?

• HSE’s published plans for 2019-2020

• Sector Plans

• HSE’s advice for Local Authority plans for 2019-2020

▪ Fee for Intervention

▪ Enforcement Decision making

▪ Investigations

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Targeted Inspection

▪ in sectors which have the most serious risks

▪ where there is information and intelligence that

▪ health and safety is a significant concern, such as:

• previous performance

• concerns raised by workers, the public or others

• incident investigations

• reports of injuries, diseases and dangerous occurrences

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HSE Planning

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▪ Direct limited resource

▪ Planning for interventions other than inspection

▪ Sector Plans

• 19 plans from Agriculture to Waste

▪ Health Priority Plans

• Occupational Lung Disease

• Musculoskeletal Disorders

• Work related Stress

▪ Small Business

Construction Aims

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▪ Embedding the principles of the Construction (Design and Management) Regulations 2015 (CDM)

▪ Focusing on a reduction in the cases of occupational lung disease, MSDs and work related stress

▪ Supporting small businesses to achieve improved risk management and control

Construction Inspection

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▪ directing inspection and enforcement at:

• those failing to manage and control risks, focusing on health risks,

• refurbishment activity, and

• licensed asbestos removal;

▪ visiting targeted dutyholders to encourage self-assessment and progressive development of their health risk management.

Manufacturing

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Local Authority National Priorities

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▪ Construction – Duty to manage asbestos

▪ Falls from height

▪ RCS

▪ Visitor attractions – animal contact

▪ Inflatable amusement devices

▪ Beverage gases

▪ Gas safety in catering

▪ Welfare for delivery drivers

▪ Access to large commercial bins by the public

LA – Topics – Proactive Inspections

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▪ Legionella – cooling towers evaporative condensers

▪ LPG at camping / caravan parks

▪ Open farms/petting zoos

▪ High volume warehousing/distribution - workplace transport

▪ Fall from height/ amputations/crush injuries - industrial retail/wholesale premises

▪ Noise – steel stockholders

▪ RCS – gravestones/worktops

▪ Flour dust – instore bakeries

▪ MSDs - residential care

▪ Manual handling – warehousing/wholesale/distribution

▪ Crowd Management – live events/sports/festivals

▪ CO poisoning - commercial catering

▪ Violence – Cash handling/lone workers

▪ Professional firework displays.

MEC and MPMC

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▪ Matters of evident concern

• create a risk of serious personal injury or ill-health and which are observed (i.e. self-evident) or brought to the attention of the inspector.

▪ Matters of Potential Major Concern

• realistic potential to cause either multiple fatalities or multiple cases of acute or chronic ill-health.

Powers of Inspectors

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• Factories Act

• Section 20 of HSWA

• Entry at any time?

• Regulator’s Code – no inspection without a reason

• Power of persuasion

Fees for Intervention

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• Material Breach of health and safety law

• It currently costs £154 an hour

Decision Making

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• Enforcement Policy Statement (EPS)

• The Enforcement Management Model (EMM)

EPS

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EMM - Example

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EMM - Risk

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EMM - Risk

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EMM - Risk

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EMM - Risk

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EMM - Risk

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EMM - Risk

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EMM - Risk

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Investigations – Selection Criteria

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▪ All work-related accidents which result in the death of any person, including non-workers.

▪ All work-related accidents resulting in a “Specified Injury” [RIDDOR Reg. 4(1)] to any person, including non-workers, that meet any of

▪ the following conditions:

▪ Serious multiple fractures (more than one bone, not including wrist or ankle);

▪ All amputations other than amputation of digit(s) above the first joint (e.g. fingertip);

▪ Permanent blinding in one or both eyes;

Investigations – Selection Criteria

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▪ Crush injuries leading to internal organ damage, e.g. ruptured spleen;

▪ Any burn injury (including scalding) which covers more than 10% of the surface area of the body or causes significant damage to the eyes, respiratory system or vital organs;

▪ Any degree of scalping requiring hospital treatment;

▪ Loss of consciousness caused by head injury or asphyxia;

▪ Any injury arising from working in an enclosed space which leads to hypothermia or heat induced illness, or requires resuscitation or hospital admittance for more than 24 hours.

Investigations – Selection Criteria

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▪ All reports of cases of occupational disease which are reportable under RIDDOR Regulations 8 – 10

▪ Other reports of cases of occupational disease with the potential to cause death or a “serious health effect” as defined in EMM, and which arise from working practices that are likely to be ongoing at the time the report is made.

Investigations – Selection Criteria

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▪ Incidents which indicate a likelihood of a serious breach of health and safety law:

▪ Major hazard precursor events

Topic Inspection Packs

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Topic Inspection Packs

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Topic Inspection Packs

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Topic Inspection Packs

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Topic Inspection Packs

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Topic Inspection Packs

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Operational Guidance

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Welfare on Construction Sites

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Welfare on Construction Sites

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Fees for Intervention (FFI)

▪ Allows HSE to charge companies £154/hr if in HSE Inspector’s opinion there is a “material breach” of health and safety law▪ “Notification of Contravention”▪ Increased from £129/hr from April 2019

▪ HSE only – not LAs/other Regulators

▪ Does not include costs incurred once a case goes to Court

▪ Does not automatically mean no prosecution as well

FFI – how to Challenge

▪ Query first (no time limit, but probably 30 days), then Dispute within 21 days of the Query response

▪ 3 person panel

▪ Lawyer as chair (drawn from AG’s Civil Panel)

▪ 2 members “with practical experience of h&s management”

▪ Procedure

▪ Usually disputes decided on papers – but can convene meeting if necessary

▪ No witness evidence

Privilege and Internal Investigations

▪ HSE have powers under s20 HSWA to compel the production of documents

▪ Where an Accident Investigation is –

1) Carried out by, or on the instructions of, a lawyer

2) Carried out “for the sole or dominant purpose of… reasonably contemplated litigation”

… the findings and documents of that Investigation are Privileged and are excluded from the s20 HSWA power

▪ If an accident report is not privileged, HSE can demand it and use it as evidence against a Company

At what point is litigation reasonably contemplated?

R (HSE) v Paul Jukes [2018]

▪ Not enough to simply say that “where there is a death and on the face of it a breach of duty, the HSE normally prosecutes”

SFO v ENRC [2018] EWCA Civ 2006

▪ Not a high threshold

▪ Intention at the time is the key

▪ aware of circumstances which render litigation a real likelihood rather than a mere possibility

Privilege and Internal Investigations

▪ Use privileged investigations where appropriate

▪ Instruct lawyers early where appropriate

▪ Privileged investigations still possible, but requires careful navigation by experienced lawyers

▪ Terms of instruction of lawyers (and instructions sent by lawyers to third parties) now very important

In all investigations –

▪ watch what you write down – how could it be viewed by the regulator?

Privilege and Internal Investigations –TOP TIPS

Sentencing – the Impact 3 years on

2017/18 By Sector

Industry Total fines Average fine

Agriculture £300k £19k

Mining and Quarrying £530k £265k

Manufacturing £27,008k £205k

Utility Supply £2,530k £633k

Water Supply/Waste Management £5,676k £177k

Construction £18,984k £98k

Retail and Hospitality £5,212k £274k

Transportation and Storage £2,065k £206k

Business Services & Finance £4,073k £81k

Public Administration £373k £62k

Education £6k £3k

Health and Social Care £4,494k £321k

Arts/Entertainment/Recreation £1,364k £114k

Sentencing

▪ Recent case law

▪ Squibb (£46m turnover business)

▪ Asbestos exposure case

▪ Squibb - Fine reduced from £400k to £190k due to Expert evidence on “likelihood of harm”

▪ Faltec and NPS - £420k/£320k reductions

▪ Only exceptionally will parent companies’ resources be considered

▪ Also, any provision for a fine in the Defendants’ accounts are to be disregarded

Disputes FFI

Appeals IN or PN

Appeals IN or PN

Appeals IN or PN

Appeals IN or PN

Appeals IN or PN

Appeals IN or PN

Reducing your fine

Reducing your fine

Reducing your fine

Summary

▪ Point 1 - Treat every HSE visit or enquiry with the respect it deserves

▪ Point 2 - Track any advice or visits relating to FFI or a NOC

▪ Point 3 – Decide whether the FFI or NOC was justified

▪ Point 4 – Challenge the FFI or NOC or Notice if considered incorrect

▪ Point 5 – Appoint a solicitor, provide all information at the time of event, inform your insurance

▪ Point 6 – If agreed guilty look to mitigate fine relating to courts

▪ Point 7 – Ultimately if you were breaching the law look again at your systems to improve your management of risk beyond that of minimum legal compliance as ‘H & S is good for business’

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Questions

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Safer Sphere

Thank you