Duty holders will already be familiar with the FFI regime which enables the HSE to recover the cost for an investigation and interventions where they identify a “material breach” to have occurred. We have previously written about the lack of an independent mechanism to appeal invoices, meaning that any dispute is entirely subject to the views of the HSE (with one independent panel member) unless the duty holder pursues costly judicial review proceedings which must always be seen as a last resort.
Given the increase in the number of prosecutions and the simultaneous increase in FFI invoicing, it is worth considering how the application of the FFI regime has developed since its introduction.
The HSE has published invoice data regarding the value and number of invoices issued.
This data shows an increase in the number of invoices from a total of 14,917 for the period from October 2012 to September 2013, to 17,802 for the period from August 2014 to July 2015.
Of more concern is the fact that the data shows an increase in cost per invoice from an average of £474.80 to £686.35 per invoice in the same period. That represents a staggering 45% increase in invoice cost in less than 2 years, well ahead of the rate of inflation.
The cumulative effect of these two increases means that the net effect to business is a 72.5% increase in the cost of the regulatory burden to those dutyholders deemed to be in material breach given the increased number and cost of invoices.
It is unclear whether the use of FFI invoicing incentivises prosecution of those duty holders deemed to be in material breach. However the increase in prosecutions (prosecutions increased by nearly 3% year on year for the period 2014/15, particularly for serious wrongdoing where prosecutions doubled according to data obtained by Cerico) suggests that this may be the case. In addition the HSE’s data for 2014/15 shows a reduction in the use of Enforcement Notices of nearly 10% for the year 2014/15 compared to the year 2013/14.
This suggests that FFI invoices are increasing in a period when enforcement notices (used to prevent injuries from dangerous working practices) is reducing, suggesting that FFI itself may be the cause of an increase in prosecutions and may be incentivising the prosecution of less serious offenders.
Duty holders should be alive to the risks of HSE enforcement action and the fact that an FFI invoice may not be the end of the matter. Obtaining appropriate expert advice early in the case is essential in order to best safeguard a company’s corporate and commercial interests, including its reputation which can be hugely damaged by an HSE prosecution.