Industry eye

Will the HSE’s new scheme to recover costs from law-breakers level the playing field or unfairly penalise struggling SMEs?

From 1 October this year, if an HSE inspector visits your site and finds a material breach, your firm will be paying for his or her time at a rate of £124 per hour, until you have rectified the breach. A material breach occurs when you have broken the law seriously enough for the inspector to notify you in writing through a letter, an improvement or prohibition notice or a prosecution.

On the face of it, this new Fee for Intervention system seems reasonable. Rather than the tax payer footing the bill for the HSE to deal with safety offenders, the offenders themselves should pay. Previously the HSE could only recover litigation fees, once a prosecution had been successful.

Some people have expressed concern that SMEs which previously used the HSE in an advisory capacity will now shy away from inviting inspectors to site due to the threat of a hefty bill. However, there is a touch of scaremongering here from those who stand to benefit: safety consultants whose services may be in greater demand; lawyers looking forward to some tasty disputes.

There is confusion about what constitutes a ‘material breach’. The HSE gives two examples: leaving a safety guard off a dangerous piece of equipment, or having damaged asbestos-containing material lying around.

It is possible that the same breach could occur on two different sites, but only one would lead to an inspector putting pen to paper and therefore charging you for their time. Inspectors decide whether something is a material breach by looking at the level of risk caused by the breach and how far the circumstances are from what the law requires.

Gordon MacDonald, the HSE programme director in charge of the Fee for Intervention scheme, has said that if evidence shows that a site has good health and safety management systems in place, an inspector can take this into account and choose to advise only – which doesn’t attract a fee.

The good news is that inspectors won’t be incentivised in the same way as traffic wardens – with revenue generation targets. Clearly the cost recovery scheme will bring much-needed funds to the cash-strapped HSE – over £30m in the first year according to estimates based on historical data. However, the HSE insists this is not a target for revenue generation and says no such target will be set.

We will have a better idea of how the scheme is working a year from now when the HSE will publish a report detailing how many material breaches have been recorded, in what sectors, money recovered and the levels and types of resulting disputes.

If the cost recovery scheme is administered in the way that HSE has indicated, small firms with a good attitude towards safety should not need to fear. And if small firms can’t afford to have proper health and safety systems in place, then they need to charge clients more so that they can do things safely. Why should firms who cut corners on safety win work at the expense of companies who do look after their workers?

This article has been written for Industry Image by Kristina Smith, who is a freelance construction writer and editor.