The Operator: Health & Safety update

3 July 2012

JONATHAN GRIMES AND REBECCA BUTLER PROVIDE AN UPDATE ON IMPORTANT DEVELOPMENTS IN THE AREA OF HEALTH AND SAFETY LAW.

RIDDOR: Changes in reporting requirements

The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR) 1995 impose requirements on employees, the self employed and anyone in control of work premises, defined by RIDDOR as a “responsible person”, to record and report certain work related incidents. As of 6 April 2012 these statutory requirements have changed, the effect being to reduce the extent of the reporting obligations on responsible persons.

Under RIDDOR work related incidents must be reported where they result
in a death, a major injury, a hospital attendance or a dangerous occurrence
(a near miss). Where one of these incidents occur the relevant authority,
which in most instances will be the Health and Safety Executive (HSE) or
the Local Authority, must be informed by the quickest practicable means and
a report must be sent to the relevant authority within 10 days. 

Previously, where a person was off work or unable to work for three days the responsible person was required to submit such a report. As a result of the recent changes it is not necessary for the relevant authority to be informed until the person has been off work for seven days and the time given to file a report has been increased to 15 days. 

The change aims to reduce the burden of paperwork on employers and to bring the regulations into line with the requirement for employees to obtain a sick note from their GP’s after seven days absence from work. However, there is a fear that the relaxation of these regulations may mean that some work related incidents go unnoticed. 

Despite the apparent relaxation in the obligations under RIDDOR the implications or failing to comply with the regulations remain severe. If prosecuted and found guilty of an offence under RIDDOR in the Magistrates’ Court an individual could face a fine up to £20,000 or a prison sentence of up to 12 years. If found guilty in the Crown Court an unlimited fine or a term of imprisonment up to two years could be imposed. The HSE regularly brings prosecutions for failure to comply with RIDDOR; William Hill was fined £4,000 last year (details opposite) and recently a scaffolding company was fined £500 and a roofing company was fined £1,000. The only defence to such a prosecution is for the responsible person to prove that they were not aware of the event triggering the report to the local authority.

HSE Fees for intervention (FFI) Scheme

The Government has accepted recommendations made by the HSE’s board that the HSE should be able to recover the costs of investigation and inspection from those who breach health and safety laws. The proposals are due to be implemented in October this year under the Health and Safety (Fees) Regulations 2012.

Where a health and safety breach has occurred the HSE’s powers include serving prohibition and improvement notices, withdrawing approvals, varying licences and issuing simple cautions. At present, the HSE can only recover costs where HSE intervention results in a successful prosecution. Under the new regulations the HSE will be able to recover the costs of investigations including any assistance provided by the HSE in remedying the breach.
It is anticipated that the HSE will be claiming costs of approximately £133 per hour meaning that the costs of a simple investigation resulting in a letter
being sent can be expected to be in the region of £750 whereas a complex investigation may cost in the region of tens of thousands of pounds. An appeal can be made against the costs imposed; however, such an appeal would be
heard by the HSE and should the appeal prove to be unsuccessful the HSE’s costs in relation to the appeal will be added onto the final bill, making an appeal against costs a very unattractive option. The effect of this change will inevitably be an increase in the costs associated with even relatively minor breaches of health and safety regulation.

In other news...

An employee was injured during an armed raid at one of William Hill’s outlets. On 16 September 2011, the firm was fined £6,000 for breach of the Management of Health and Safety at Work Regulations as they failed to follow the Council’s advice by improving outdoor lighting and CCTV in the shop. They were fined an additional £4,000 for failing to report an injury in line with the RIDDOR requirements and they were ordered to pay a further £2,882 in prosecution costs.

On 9 January 2011, a shop owner in Pembrokeshire was fined £4,000 following two breaches of the Electricity at Work Regulations for failing to maintain electrical appliances after an employee received an electric shock. He was fined a further £2,500 under the health and safety at work act and was ordered to pay £3,500 in costs. A delivery driver slipped on a doormat at the
Whitelodge pub in Somerset resulting in his ankle being pinned and operated on four times. The Whitbread Group admitted liability in June 2011 and settled out of court at a cost of £165,000.

Jonathan Grimes & Rebecca Butler

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