Elliott Kenton is a partner and health and safety expert at law firm Weightmans
Construction firms now face higher costs for health and safety compliance following an increase in the fee for intervention (FFI). This is the mechanism by which the Health and Safety Executive (HSE) charges businesses for investigative activity where a ‘material’ breach of health and safety regulation is found.
“The best way to avoid the FFI increase is by not giving the HSE cause for concern”
Since 2012, parliament has empowered the HSE to charge dutyholders for time they spend investigating and, as of 1 April 2024, those charges have gone up from £166 to £174 an hour.
FFI has long been a controversial feature of HSE investigations. No other investigative authority has the power to charge for their time even when no enforcement action is undertaken. An FFI bill can be high – well into six figures – and the increased rates could not have come at a worse time for a construction industry creaking under the strain of mounting costs, a glacially slow planning system and global material shortages.
What the HSE classifies as ‘material risk’ is also ill-defined. It is subjective, down to the discretion of individual inspectors. This ambiguity means it is essential that construction firms leave nothing to chance and make sure their health and safety processes are robust, to ensure a material breach of health and safety law is less likely to be found.
Avoid falling foul of the regulator
FFI affects all sectors, but construction is one of the most at risk, given the importance of health and safety and the potential consequences if standards are not upheld. Construction has been a key sector of focus for the HSE for a number of years, and construction sites are an area ripe for HSE inspection. Therefore, the susceptibility to be subject to FFI is that much higher than other sectors.
The best way to avoid the FFI increase is by not giving the HSE cause for concern – saturating health and safety into company culture, holding regular training and having robust policies, procedures and systems in place. These are the factors that will help avoid a major incident and show the regulator that your business takes safety seriously.
If the worst does occur, a comprehensive incident response procedure is vital for building firms where an incident can be incredibly serious, and lead to fatality or catastrophic injury. This must cover more than just how to react directly to the incident on the ground. It should include how an investigation will be managed by senior management and the board, how it will be communicated to employees, who will manage media enquiries or liaise with relevant authorities, and which external advisors need to be brought in.
These procedures will not only help to mitigate the impact of an incident if the worst happens but improve the HSE’s perception of a business during an inspection. It sends the message that this is a business that does everything it can to mitigate and manage risk.
Challenging an FFI
Everyone has the right to challenge an FFI and one positive change in recent years is that disputes are reviewed by an independent panel, not the HSE itself.
Even so, this process can be long and time consuming with varying success rates, and there is limited further recourse available if a dispute is not upheld. It’s essential to get an independent legal view as to whether a dispute is likely to succeed before going ahead. Otherwise, vital time and resource that could have been better spent improving standards will be wasted.
As with all health and safety matters, FFIs are most certainly a case where prevention is the best medicine. Construction firms are best served investing in the systems, policies and procedures that will mean that when an inspector calls, a material breach will not be identified – particularly as the price of getting it wrong just increased.
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