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May 2017 Newsletter - Fee For Intervention (FFI) Cost recovery scheme

Posted on Wednesday 10th May 2017

Fees for Intervention

In October 2012 the Health and Safety Executive (the “HSE”) introduced  a Fee for Intervention cost recovery scheme (“FFI”) to reduce public spending on the HSE by moving certain costs to dutyholders (employers, generally).

If upon an inspection an HSE inspector identifies a material breach of health and safety legislation s/he is entitled to issue an FFI invoice to cover the costs of the investigation, which the dutyholder is liable to pay. One can see the danger inherent in the scheme; that HSE inspectors issue a contravention notice whereas previously they might have given verbal advice, for which there is still no charge. If there is disagreement on the HSE’s decision, or the amount of the FFI invoices, the dutyholder can appeal by initiating a ‘dispute’.

Disputes are currently considered by a panel consisting of two members from the HSE and one independent person. If the panel does not uphold the appeal, the dutyholder must pay the adjudication costs at £129 an hour. We commented in our Newsletter explaining the Scheme that we were of the view that this set up meant taking a dispute forward was likely to be a waste of money.

When facilities management company OCS Group was issued with a notice of contravention in August 2014 over its use of strimmers at Heathrow Airport, along with invoices amounting to £2306 in relation to the Inspector’s costs, OCS disputed the decision. The dispute was heard in front of the FFI dispute panel which found in favour of the HSE. OCS applied for, and was granted, permission for a judicial review on the basis that the dispute panel was not sufficiently independent of the body which had imposed the penalty.

 The judicial review hearing was scheduled for 8 March 2017.  However, prior to the scheduled hearing the HSE settled the case with OCS. The initial FFI notification of contravention was withdrawn, and the HSE agreed to pay OCS’s costs.

More important the HSE announced its intention to consult with stakeholders on proposals for a revised dispute process, “with a view to making the scheme fully independent”. This will give stakeholders an opportunity to offer their thoughts on the new procedure.

The HSE are yet to provide any details in relation to the consultation or when it will start.

OHSAS 18001: The Transition

Many of our clients will be aware that ISO 45001 is expected to replace BS OHSAS 18001

The latest and possibly last draft of ISO 45001, the international standard for occupational safety and health management systems, has been issued for comment by BSI; the UK’s national standards body (NBS).

The terms and definitions have all been agreed and the whole thing has been tidied up and the annex containing advice on measures to meet the standard had been substantially simplified.

Between May and July, a ballot of 70 NBSs will be held about the draft: if there are no technical changes during the current consultation, the final standard is likely to be published in late November.

A three-year transition period is anticipated after the new standard is published. ISO 45001 will join a suite of standards for management systems, including ISO 14001 for environmental management and ISO 9001 for quality systems.

Acton Jennings LLP can assist clients obtain ISO accreditations or assist with the transition from OHSAS 18001 to the new health and safety standard ISO 45001. Please contact our office for further details.

Hard Hat Infections

Our construction clients may wish to pass this information on to their employees. It can be downloaded from our website as a TBT.  

Hard hats can be life savers. There’s many a building worker who can testify to that. However, in certain circumstances a severe skin infection of the scalp, called cellulitis can develop. The most likely cause was storing dirty / soiled gloves within the individual’s hard hat.

The skin normally has many active bacteria living on it. Healthy skin is an effective barrier which stops skin bacteria from entering & growing inside the body. However, when there's a break in the skin, bacteria can easily enter the body & grow there, causing a bacterial skin infection & skin inflammation. The infected skin area becomes red, hot, irritated & painful.

Work gloves are designed to protect the hands from injury and contamination by preventing entrance to the body through the skins surface. When placed in a hat, the exterior of the dirty gloves has direct contact with the skin so can cause infection, especially if there is a break in the skin, regardless of how small that cut or abrasion is. 

If the hard hats forehead “sweat” band is also very dirty from the gloves and general sweat, this would increase the risk of infection from any hard hat. The hard hat is not designed for storage and should not be used to store dirty gloves.

New Data Protections Rights

The EU's new data protection regime The General Data Protection Regulation (GDPR) comes in to force in May 2018.  It will be directly incorporated into the UK legal system without the need for UK implementing legislation before Brexit happens. In order to trade with the EU at all post Brexit, whether as part of the single market or otherwise, the UK will need to demonstrate an 'adequate' level of data protection. Therefore, the UK will very likely continue to implement these regulations post-Brexit.

There are some very important changes from an HR point of view.

Transparency: The GDPR requires more extensive information to be given to individuals about the processing of their personal data. The definition of personal data is also enlarged.  Additional information includes information about the legitimate interests relied on and the period for which the data will be retained. The individual must be told he has a right to access and port data, to rectify, erase and restrict his personal data, to object to processing and to withdraw consent and to complain to the Information Commissioner’s Office (ICO).

Consent: Recital 43 of the GDPR states: 'in order to ensure that consent is freely given, consent is not a valid ground for processing where there is a clear imbalance between the individual and the controller'. This means it will be harder for employers to rely on consent as a condition of processing. An alternative lawful basis for processing such as necessary for the performance of the employment contract or for compliance with a legal obligation or for the pursuit of legitimate interests may have to be cited. Prior to giving consent, the employee must be informed he has the right to withdraw his consent at any time. It must be as easy to withdraw consent as to give it.

To try put the distinction more practically, as we see it at this time, the employer’s request for information on the employee’s next of kin details would require the employee’s consent and the employee must be made aware of this and that he can withdraw consent and that the data on the next of kin  can be erased.   However, storing data about the employee’s bank account is necessary for the performance of the employment contract.

Data subject access rights: These are enhanced and will include a right to be forgotten ('erasure'). On receipt of a subject access request the data processor will be required to confirm whether it processes data about the individual, provide a copy of the data and explanatory materials in electronic form, including, if applicable, why it intends not to comply, without undue delay and at the latest, generally, within one month. There is no right to require a £10 processing fee before complying.

Penalties: These are swingeing: up to 20,000,000(EUR) or up to 4% of the total worldwide annual turnover of the preceding financial year, whichever is greater. This is significantly higher than the maximum under the DPA of £500,000 for a serious breach.

The ICO is publishing practical guidance to support organisations to prepare for the change.

A Compliance Guide to EU General Data Protection Regulation is available on our website.

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