The Government is making it clear it does not want health & safety to stand in the way of the private sector leading the economy out of recession and has said it will bin half the regulations. But with HSE now charging firms £124-an-hour if it takes action against them, the cost of not complying with the remaining health & safety legislation has just gone up.

From the start of this month (October), if the Health & Safety Executive feels the need to close down your premises or site, or even just write you a letter to inform you of some minor infringement, it has been charging for the ‘support’ it is giving you.

The rate is £124-an-hour, not quite as bad as the £133-an-hour that was originally going to be introduced in April, but still enough to make many people feel as if insult is being added to injury.

HSE has for many years charged railways, chemical companies and the oil industry when it has felt the need to take action against them. Now, facing a cut of 35% in its budget over the next three years, it is extending the charges to all companies.

The Health & Safety Executive (HSE) is keen to point out that firms will not pay anything if they comply with what promises to be in future much more straightforward legislation – or at least much less legislation, with around half of the current regulations being binned during the next three years.

But companies are concerned that the cut in the HSE budget could encourage HSE inspectors to take action where once they might simply have had a quiet word to point companies in the right direction on health & safety issues.

When this magazine posted a reminder on LinkedIn in September about the £124-an-hour charge, Michael Poultney, the Managing Director of Portland company Albion Stone, made the following response:

“The problem is that Health & Safety laws are not all black and white. Many are shades of grey and interpretation of the assessment of the perceived risk.

“Individual inspectors can view the same operation and come up with different conclusions and, of course, there are the occasional little Hitlers.

“I recall one occasion several years ago when a quarry inspector turned up unannounced at our site. The Quarry Manager was in the middle of an interview and the inspector was asked to wait a few minutes. Big mistake. He didn’t. He went into the quarry and wrote out three notices in 15 minutes.

“Our own health & safety inspector, an

ex quarry inspector, wanted to take the other man to task, but we thought that wouldn’t be a good idea!

“Getting an invoice for this type of action would be adding insult to injury.”

At least companies can now contest HSE decisions through the Independent Regulatory Challenge Panel that has been established this year, although as you have to fill in a form on the HSE website to make initial contact with the Challenge Panel, it does not always feel so independent.

The Challenge Panel will (it hasn’t yet, although it was formed at the start of the year) look into complaints regarding ‘advice’ given by HSE or local authority inspectors that you think is either incorrect or goes beyond what is required to control a particular risk adequately.

The Panel is keen to avoid a deluge of

pre-emptory challenges and asks companies to try to resolve issues with the relevant HSE or local authority inspector, or the inspectors’ manager, before raising an issue with it.

If an issue goes to the panel, the outcome will be made public on the HSE website.

You should note that the Panel is advisory and cannot impose its decision, although it will start to look singularly odd if too many recommendations are ignored.

If you do not like the outcome, you can follow existing complaints procedures, including writing to the Chief Executive of HSE or the relevant Local Authority Chief Executive. If you still feel aggrieved after that, you could ask your MP to contact the Ombudsman who investigates cases relating to HSE, or the local government ombudsman if your dispute is with a council health & safety inspector.

The Government’s announcement last month (see NSS September issue) that many businesses (although not construction sites) will no longer be routinely inspected by HSE after April next year, was clearly intended to send a message to business to move health & safety down the agenda and concentrate on achieving the growth the Government would so desperately like to see.

Reinforcing that message was the announcement that legislation is being introduced this month to make it harder for companies to be sued for damages by an employee injured at work.

In future, an accident will be an accident and businesses will only be held liable for civil damages if they can be shown to have been negligent.

The significant change is that it will be up to the injured party to demonstrate that the company was negligent rather than for the company to have to defend itself against the allegation.

The Government proposes to scrap more than 3,000 regulations, although that will include employment legislation as well as health & safety.

The Government describes these regulations as unnecessary red tape that has been costing industry many millions of pounds every year.

After the changes in April next year, businesses will only face health & safety inspections if they are operating in higher-risk areas (which includes construction), if there has already been an accident, or if they have a track record of poor performance.

Business Secretary Vince Cable said when the changes were announced last month that the Government had listened to the concerns of business and had determined to put common sense back into areas such as health & safety.

The notion that there is no common sense in health & safety is something the HSE has been fighting a rearguard action against for many years. It has published on its website and in as many newspapers as will print them its rebuttals of incidents such as children being banned from playing conkers and the removal of hanging flower baskets on health & safety grounds.

The gradual drip of such stories on to the public psyche could almost have been designed to legitimise a relaxation of health & safety legislation and the HSE has gone to some lengths to identify such stories and refute any suggestion that the HSE or health & safety in general is behind the issues.

At first, HSE had its ‘Myth of the Month’ on its website, which was generally light hearted. Lately it has taken the matter more seriously through its Myth Busters Challenge Panel.

The Panel is headed by the HSE Chair Judith Hackitt, supported by HSE Board member Robin Dahlberg and a pool of independent members who represent a wide range of interests.

This Panel looks into complaints regarding the advice given by non-regulators (such as insurance companies, health & safety consultants and employers) and quickly assesses if a sensible and proportionate decision has been made.

The aim is to make clear that health & safety is about managing real risks properly, not being risk averse and stopping people getting on with their lives.

This month, the Panel has had a slightly unusual task in responding to an article in The Mirror under the heading: ‘Will work be the death of you?’

The Mirror took the view that employees will be in danger because of the “savage” cuts in health inspectors.

Geoffrey Podger, the Chief Executive of the HSE, responded:

“The way the Health & Safety Executive inspects occupational health has changed considerably in the last 20 years.

“HSE’s doctors and occupational health inspectors now work with many other specialists – including those from HSE’s Health & Safety Laboratory – in contributing to reducing risks to health in the workplace. These include industrial hygienists, noise and vibration specialists, ergonomists, psychologists, health scientists and other experts from a variety of backgrounds.

“The number of occupational physicians and inspectors quoted by Prospect [in The Mirror] also does not take into consideration HSE’s use of external specialists, nor the fact that HSE has changed the way it carries out its duties in relation to occupational health issues.

“Occupational health remains an important part of HSE’s work and it is wrong to claim otherwise.”

Between 12,000 and 18,000 of the UK’s 600,000 deaths each year are attributable to diseases resulting from exposure to workplace hazards, even though the symptoms of the diseases can sometimes take a long time to manifest themselves.

Silicosis in stonemasons, for example, is often only diagnosed after the mason has retired and while the symptoms of White Finger are often apparent during a mason’s working life, they can become worse in old age. Government figures show that more than 2million people suffer from some form of occupational ill health.

These figures can be compiled because firms have a statutory duty to report employee absences due to industrial diseases. But part of the red tape the Government wants to remove from firms is this requirement to report, so in future we will not know how many people suffer from industrial diseases.

In The Mirror, Sue Ferns, the head of research at Prospect, the union representing engineers, warned: “That would remove the bulk of the intelligence guiding the work of hygiene and occupational health inspectors and deprive health & safety representatives of information essential to monitor workplace health.”

More commonly, the Myth Busters Challenge Panel deals with cases such as the company which was refused a contract to carry out maintenance to coffee machines on a construction site because it did not have third party validated health & safety training, although it carried out the equivalent training in-house.

The service company failed the contractor’s assessment process, which some readers responsible for site safety might have some sympathy with.

However, the Panel said that while it recognised large contractors in the construction industry had a duty to ensure sub-contractors were properly trained before going on site, the insistence that a

sub-contractor servicing drinks machines must have health & safety training validated by third party accreditation was disproportionate and inflexible.

While there might be some easing of health & safety red tape in the years ahead, there is no indication to date that those convicted of infringements of the remaining health & safety regulations will face lighter penalties – and the penalties became considerably more severe under the previous Government, which also introduced new crimes such as corporate manslaughter.

It is not necessary to look beyond this month to see an example of the level of fines now being imposed.

On 4 October a building contractor, Watkin Jones & Son Ltd, was fined £450,000 and ordered to pay £98,000 costs after an employee fell through a roof while working on the construction of the Menai Centre in Bangor, Wales. He later died as a result, a court has decided.

The employee was Thomas Whitmarsh of Batley in West Yorkshire. He was just 21. He was employed by a roofing contractor working for principal contractor Watkin Jones & Son on 29 May 2007 when he fell nearly 6m through an unguarded opening in the roof to the floor below.

He spent several months in hospital with serious head injuries. He seemed to be making a gradual recovery but the injuries he had suffered exposed him to a higher degree of infection and he contracted acute meningitis. He died on 17 December 2009.

Evidence presented to Mold Crown Court included a pathologist’s findings that suggested there was more than an 80% chance the injuries from the fall contributed to his death.

The Health & Safety Executive (HSE) prosecuted Watkin Jones & Son for failing to ensure Mr Whitmarsh’s safety while at work.

The court heard that edge protection around the opening in the roof had been removed prior to the incident and that the company had failed to provide an alternative means to protect against falls.

The company, which is based at Llandygai Industrial Estate in Bangor, was found guilty of breaching Section 3(1) of the Health & Safety at Work etc Act 1974.

Following the hearing, HSE inspector Chris Wilcox said: “Falls from height are an alarmingly common cause of death and serious injury in construction. All too often straightforward practical precautions are not considered and workers are put needlessly at risk. Poor management of risk in this industry is unacceptable and HSE will take strong action when necessary.

“This tragic case should remind all contractors that work at height must be managed effectively and adequate safeguards should be in place to prevent falls.”

In 2011/12 there were 49 fatal accidents on construction sites in the UK, with falls from height being a major cause.

It is because some of the highest rates of work accidents occur on building sites that they will continue to be routinely inspected by HSE after next April’s easing of the rules.

And the stone industry remains as prone to accidents and industrial diseases as any part of the construction industry – in fact, it is particularly prone to crush and musculoskeletal injuries because of the weight of the materials it is dealing with and to suffering the effects of exposure to dust and vibration injuries (white finger) because of the nature of the work.

It is why Stone Federation Great Britain, while welcoming the removal of some onerous red tape from industry, continues to put health & safety high on its list of priorities for the industry to deal with and why it retains the services of health & safety consultant Peter Robertshaw, who runs a 24-hour emergency helpline for Federation members.

He believes stone companies that think they will no longer have to concern themselves with health & safety could be in for a rude awakening. “What the Government has said is there’s too much red tape. They’re not saying you shouldn’t work safely. There might be a misinterpretation about that.”

Peter points out that the British Government will have to retain the principles of health & safety legislation because it does not have the authority to ditch it. Although much of it predated legislation from Europe, it has been adapted to comply with subsequent EU directives that apply to all countries in the European Union, which, of course, includes the UK.

Peter does not believe binning even half the health & safety regulations will make a significant difference to the stone industry. “From my point of view, the HSE’s enforcement process is not the driving force of health & safety in the UK – well, it shouldn’t be. And this new approach is not going to change the requirement of Stone Federation members to comply with health & safety.”