North of the Border: Counting the cost of H&S

Fees for intervention invoices are issued across the UK when, in an inspector’s opinion, there has been a material breach of safety regulations. There is no limit on how much can be recovered.

The scheme was heavily criticised in an independent review of the HSE in January 2014. Given that FFI was introduced at a time when the HSE’s budget was substantially reduced, and without the usual statutory safeguards in place, doubts were expressed about its impartiality.

Scepticism was heightened by the fact that the HSE conduct both stages of the appeals process against an invoice. The first stage of appeal – a query – is free of charge. However, if a further challenge, a dispute, is submitted, and is ultimately unsuccessful, the appellant will receive an additional invoice at the same hourly rate for the time engaged by each member of the panel determining the matter.

There is a reluctance to challenge FFIs for economic reasons and a temptation to co-operate notwithstanding the possibility of an adverse inference in the event of a trial. Interestingly the head of the health & safety division of the Crown Office in Scotland recently stated that FFIs would not be relied upon in criminal prosecutions. No such comfort is extended by the HSE in England and Wales.

Recently an FFI invoice was successfully appealed where a material breach had been incorrectly identified. This was the first appeal to be upheld.

It looks as though FFIs are here to stay, at least for the foreseeable future. It would be prudent for organisations to accept this and, if they are investigated, keep detailed records to enable them to weigh up the costs and potential benefits of challenging an invoice.

Louise Houliston, associate, Simpson & Marwick

This article was published in the 27 November edition of Post magazine.