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The low hazards, high risk anomaly and continuing HSE scrutiny

The recent Construction safety statistics published for 2012/2013 demonstrates that the Construction industry is an accepted high hazard area. A hazard is anything that may cause harm e.g. chemicals, electricity, working from ladders, noise etc.  The construction industry remains a high risk industry and although it accounts for only about 5% of the employees in Britain it accounts for 27% of fatal injuries to employees and 10% of reported major injuries.

However the recent safety statistics demonstrate that the numbers are reducing. There were 39 fatal injuries to workers in 2012/13 compared with 48 in 2011/12 (and an average of 53 over the previous five years).  This can perhaps be explained by the continuing Health and Safety Executive (HSE) scrutiny of high hazard sectors. Indeed the Fee For Intervention Scheme (FFI) statistics also corroborate this continuing focus. It has been reported that for the period of 1 October 2012 to 30 November 2012 FFI bills totalling over £700,000 were issued following investigations at over 903 premises. Of these inspections, 373 were in the construction sector, which reflects the HSE’s focus on this industry as a “high risk – high priority” sector. Given the high hazard nature of the construction and manufacturing industry they were unsurprisingly the hardest hit by the fees.

It is apparent that the Government is keen to limit HSE inspections to focus on high risk areas such as construction or businesses that demonstrate a poor record.  However small to medium sized businesses that are perceived to be a low hazard or a low risk area, should not be complacent with their health and safety systems. The Governments light touch to health and safety should not mislead organisations that have been classified as posing a lesser risk to think they are free of scrutiny or that they are immune from investigation or inspection by the HSE. Any business which experiences a serious accident or a series of “RIDDORable” events can expect to be targeted by its regulators. In addition, the HSE undertake inspections based on tip-offs. These can include whistleblowing reports from employees or union representatives, complaints by local residents, customers and suppliers and Insurance reports on workplace incidents.

Against such a background, businesses should continue to maintain high standards of health and safety and shouldn’t be tempted to view their policies, systems and record keeping as an unnecessary business expense or an overhead that can be added to the top of the cost cutting list.  This is particularly pertinent when we consider that the HSE is able to charge businesses for inspections if breaches of regulations are found through the FFI Scheme.   The FFI scheme means that interventions which might previously have been dealt with through informal discussion may now result in correspondence, such as a letter or an e-mail, along with a fee being charged and a record of the breach being maintained by the HSE.

Risk is the chance, high or low, of somebody being harmed by a hazard, and how serious the harm could be. It appears that in practice we are seeing an increase in the number of investigations into accidents in traditionally non high hazard areas such as schools, nurseries, nursing homes and hospitals which demonstrates that the regulators’ attention is not being solely concentrated on high hazards. Investigation includes all those activities carried out in response to an incident or a complaint to gather and establish the facts, identify immediate and underlying causes and the lessons to be learned, prevent recurrence, detect breaches of legislation for which HSE is the enforcing authority and take appropriate action, including formal enforcement. Across Great Britain, 706 cases were prosecuted for health and safety breaches in 2012/13. These cases led to 672 convictions for at least one offence, a conviction rate of 95% and total fines received of £15m. Of these 706 cases, the HSE prosecuted 574 cases, an increase of 6% from the previous year.

Therefore businesses that have less high hazards and may be perceived to be low risk should not be complacent but rather ensure key hazards are identified. Indeed businesses that may appear to be quite safe may have significant problems such as slips, trips and falls, facilities management issues and problems with fire handling and manual handling injuries to name a few. In conclusion, a low hazard workplace can still equate to high risk and businesses should adopt a proactive approach to health and safety.

 

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

Paul Matthews

Partner - Head of Regulatory (Yorkshire and North East)

I am a Partner in the Regulatory team and a corporate defence specialist who provides up-front regulatory compliance advice and representation to businesses and senior managers in relation to investigations and prosecutions by regulatory bodies.