Health and Safety (‘H&S’) is not usually at the forefront of an IP’s mind when taking on a new appointment. Getting the job through the door, competitive pricing and the myriad of law and regulation to comply with dominate the flurry of activity at the commencement of a new case. H&S tends to come as a checklist point, if at all, after appointment.
It is not, and should not be, a tick box exercise. Having this sort of approach to H&S can create more problems for the IP (and potentially their senior staff) than it solves.
“But I’ve only just been appointed”
Struggling companies often cut back, or stop altogether, investment in H&S. This means that when an IP is appointed s/he inherits an unenviable position of being in control when there might be H&S breaches lurking and they are completely unaware of them. The Health and Safety Executive (‘HSE’) and Fire Authorities do not understand (and nor do they care) that you have only just been appointed/ inherited a position/ you were not in control when H&S investment was slashed, if they inspect a premises or property that has H&S breaches.
“As long as no one gets hurt, I’m ok”
When I say H&S breaches, I mean ‘technical’ breaches of the legislation. No one has to be injured or harmed for the HSE and Fire Authority to come and inspect a premises, properties or assets under your control. Any and all technical breaches are each a separate criminal offence. And that is the major point here – they are criminal offences not civil. You can’t insure against them and the liability is a personal one – for the IP and /or the senior manager in charge – which could see you in front of a Magistrate rather swiftly. Every H&S breach is a separate criminal offence.
So, if you are the LPA Receiver over a bunch of student digs and they mess around (like students tend to do) and take out the battery of the fire alarm – because Fred keeps burning his toast in the morning and waking everyone up – and last night they decided to have a ‘fight’ with the fire extinguishers and emptied them around the flat, you have a problem. Not one of your creating but still your problem as the IP in charge of the premises. There will be a H&S or Fire breach for each and every failing discovered upon an inspection – and yet you had no idea; how could you know about that? Well, that will not be the concern of the HSE or Fire Authority as they list each as a separate breach and criminal offence to be prosecuted. IP’s staff sometimes have the view that they are immune to issues on cases (the buck stops with the IP after all) – but this one could see them land in jail with you as well as some hefty fines that aren’t insurable. Not something I would envy.
“I’ve never heard of an IP getting into trouble”
Why is this an issue now? Well it’s not. It has been an issue for IPs for several years now – you just don’t tend to hear about it because firms spend hundreds of thousands of pounds defending actions from the HSE and Fire Authorities. IPs who have been unfortunate enough to be on the receiving end of an ‘impromptu’ inspection (following a tip off from a director wanting to chip the price of a property for example) have suffered the stress and strain of being under criminal investigation and defending a prosecution whilst still trying to run a practice, get in new work and keep their other cases compliant. The investigations tend to drag on for years. Being under that sort of strain is not good for an IP’s health (never mind their wallet).
“So what is new?”
The new sentencing guidelines came into force at the beginning of February and these have seen much tougher fines proposed for H&S breaches. The new fines are supposed to have a real impact on the businesses that have either incurred technical H&S breaches or H&S breaches that have resulted in actual harm or a fatality.
“How can I protect myself and my staff?”
What can you do about it? I will be delivering a short webinar* on H&S for IPs from my own experience and perspective.
I am not a lawyer and legal advice should always be taken when dealing with H&S and Fire breaches. However, I can give you a brief overview of what to look out for, what actions you should take and what agents and advisors you should employ on every job which has physical assets. Responsibility cannot be delegated or passed to an agent but there are practices and procedures that can be put in place to assist an IP’s defence (and hopefully get the prosecution dropped) should the unthinkable happen.
Deborah Manzoori FIPA FABRP
The Compliance Alliance
* Our webinars are available to all Compliance Alliance webinar subscribers (£250+VAT for firm-wide access to all our webinars for one year). If you would like to sign up to the webinar, please drop us a line at info@thecompliancealliance.co.uk .