Category Archives: New and changing legislation

Following the end of public and formal consultation procedures in October 2011, the Board of the Health and Safety Executive has announced its conclusions. Fee for Intervention (previously known as fee for fault) will be adopted from April 2012 broadly along the lines originally proposed, but with a headline charge of £124 an hour instead of £133.

This reduction is simply because HSE’s own costs are lower as a result of internal savings and job reductions. Consultation concluded that it was reasonable for noncompliant employers to bear the costs associated with their failings, rather than the taxpayer.

There will be shadow-running of the processes and procedures between now and March, with cost recovery becoming operational in April. Earlier dry runs took place in Chelmsford, Bedford, Basingstoke, Newcastle and Norwich.

Compliant organisations will not have to pay for inspectors’ time but where a material breach is discovered, the charges will be applied. A material breach is defined as where, in the opinion of the inspector, there has been a contravention of a health and safety law that requires written notification to the employer. Written notification includes email, letter, enforcement notice, prosecution, or a hand-written report on the day of the visit.

Following a consultation exercise that drew around 800 responses, the Health and Safety Executive recommended to the Work and Pensions Secretary that the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR) be amended.

The change is to the category of “over three-day injury”, which will become over-seven days from April 2012. Most respondents felt that the change would be beneficial as administration burdens will reduce, and the new period would match to that required under the new fit-note system. Not only would it make sickness absence easier to manage, it should give more time for employers to become aware of any incident and reduce under-reporting.

Professor Löfstedt was asked to continue the work originally started by Lord Young, who was given a brief of introducing more common sense approach to health and safety.

Löfstedt, himself a Professor of Risk Management, came up with 26 recommendations. The Government has undertaken to implement these within a given timetable and the more significant proposals are shown below:

By summer 2012:

• Simplify the guidance for small businesses, and make this consistent from all sources.
• Cease visiting compliant low risk businesses.

By 2013:

• Exempt low-risk self-employed people from health and safety law.
• Revoke regulations deemed as unnecessary.

By 2014:

• Further simplify the accident reporting regime
• Influence EU legislation so it is risk and evidence based.
• Consolidate regulations by industry sector, halving the total number.

The Health and Safety Executive (HSE) are inviting comments on their plans to recover the costs of their inspectors’ time when dealing with employers who have materially breached the law. The presumption is that the charging regime will come into being, and the consultation exercise is all about how this should happen and the appropriate level of charges.

Where an HSE intervention is found necessary, the employer could be liable for a fee of around £1,000 per day. Typically, it is suggested that an inspection that results in a letter being sent to the dutyholder would be charged at £750, but enforcement action such as an Improvement Notice would attract an average bill of £1,500. Should HSE have to carry out an investigation eg into a reportable injury, the employer’s cost would be in proportion to the time spent on the matter. In extreme cases such as major incidents, this could run into tens of thousands of pounds.

The consultation document gives examples of situation that inspectors may face, and the likely costs involved. So, if a visit finds that a machine is unguarded and a notice is served, HSE will look to recover costs for the initial visit, any follow-up visit to see that the employer has complied with the notice, and all the time spend on administration. Consultation ends on 14 October 2011 and comments can be made via http://consultations.hse.gov.uk/gf2.ti/f/15138/393957.1/pdf/-/CD235.pdf

Over three-day reportable injuries as defined in the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR) will no longer be able to be notified via the telephone from 12 September 2011. The telephone method will still be available to notify fatal and major incidents and injuries, but all other reportable workrelated injuries and incidents under RIDDOR will have to be advised to HSE online.

There will be a suite of seven forms available on HSE’s website, and these are in the table below. The new procedure is supposed to speed up incident reporting and also assists HSE in reducing the administrative cost of paying for telephone lines to be staffed. As mentioned in the last edition of PHSC News, the duty to report “over-three day” injuries is likely to change to “over-seven days” later this year.

Further to Lord Young’s report on reducing the burdens of health and safety legislation, consultation on amending the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR) has taken place.

Comments are presently being evaluated on a proposal to change the period of incapacitation after which an injury to a person at work must be reported to the enforcing authority. The current over three-day period is expected to rise to over seven days.

The logic behind this proposal can be seen at: http://www.hse.gov.uk/consult/condocs/cd233.htm and a decision is expected later in the year.

October 2010 saw the introduction of the Equality Act 2010. This replaced various pieces of employment legislation including the Disability Discrimination Act 1995. Disability is one of nine potential “protected characteristics” for which a person cannot be treated less favourably than other people. Although mainly a consolidation of previous rights into a single Act, there are some new implications for employers. In terms of health and safety, the principal change is to outlaw pre-employment medical questionnaires in most circumstances.

Targeted questions are still permitted in limited situations, i.e. where it is relevant and necessary for the job. An example would be to establish whether an applicant for a role involving heavy lifting had a history of back injuries.

Note general enquiries including those concerning attendance records are not acceptable. This is because absence may be related to disability and to select the person with the best attendance may discriminate against a disabled applicant.

As promised during his election campaign, Prime Minister David Cameron has confirmed the appointment of the Rt Hon Lord Young of Graffham as his adviser on health and safety law and practice.

Mr Cameron stated that he saw “the rise of the compensation culture over the last ten years” as a major issue, and was critical of the way that some health and safety laws are applied. Lord Young’s brief is to work with Government departments to look at all the legislation and ensure that businesses are not overburdened with red tape. In accepting his appointment, Lord Young commented that he was looking for a common-sense approach to regulation, targeted to where the risk lay and without excessive bureaucracy. As well as the impact on companies, he will address the impact on the public sector and community organisations.

Trades Union Congress general secretary Brendan Barber is on record as saying that far from scrutinising the legislation, time would be “better spent investigating a work culture that injures a quarter of a million people each year and makes another half a million employees ill”.

Following a European Union initiative, consideration is being given to consolidating the duty to control risks of musculoskeletal disorders (MSDs) under a single set of regulations. Presently the prevention of these conditions is the main focus of both the Manual Handling Operations Regulations 1992 and the Health and Safety (Display Screen Equipment)Regulations 1992.

If MSD-related requirements were taken out of current laws and combined in a new Statutory Instrument, the eyesight testing obligations for display screen equipment users could become a health surveillance requirement under the Management of Health and Safety at Work Regulations 1999. Thus three pieces of legislation would be reduced to two. Deregulators could claim a success, but in practice employers would continue to have broadly the same obligations.