Finch HS&E Legal experts can’t build you a cloaking device but they can help you use The Force
Be more Jedi.
In this article, Finch Consulting’s Health and Safety lawyers, Julia Thomas and Susan Dearden, and environmental legal compliance specialist Clare Fowell, explain the benefits of employing Finch Health, Safety and Environmental legal expertise to help businesses maintain compliance and mitigate the risks of a potential accident and avoid HSE, EA and NRW fines.
The real world.
Let’s be honest. In the real world, most businesses are not fully compliant with health, safety, and environmental legislation across all operations, all of the time. Just as no motorist obeys all road signs, every rule in the highway code and meets all the vehicle safety requirements, all of the time.
Just as it is most responsible motorist’s goal to get to their destination safely without getting hurt or causing harm to others, most responsible businesses aim to hit profit targets with zero downtime caused by accidents and work related ill-health and, of course, cause zero harm to others by their business endeavours.
The law tries to help by being goal setting but although the law does set limits, it does not give definitive answers to all health, safety and environmental issues and there are shades of grey which are open to interpretation by any number of parties.
On the journey to pick up the kids, it is possible that our well-intentioned motorist, is pulled over by a police officer (or caught by a speed camera). Perhaps they were rushing (they had a lot to do that day), and they just took their eye off the speedometer for a moment. Whether it was a momentary lapse or more habitual bad driving, the lapse is now likely to be investigated and punished. Similarly, the HSE, EA, NRW or EHO can walk into a business at one of its busiest times without warning. The inspector will probably notice the unprotected nip point on a machine or the process valve leaking a hazardous substance or a lifting practice which is unsafe. No accident has happened (there doesn’t need to be, only the risk of harm is needed), but if the regulator is the HSE then their time is now likely to be at your cost through Fees for Intervention.
If you are lucky, and the breach is “not too bad” there will be a conversation and you’ll “promise to improve” (just like the motorist pulled over by the pragmatic copper, promising to slow down) your reassurances to fix a guard, rearrange the shift rota, replace the bund and replace the filters in the LEV may lead to an admonishment (Notice of Contravention) and Fees for Intervention but perhaps no more.
However, you could also receive an enforcement notice, or be charged with health and safety or environmental breaches (or even both). Average fines are over £250,000 and many exceed £1m. It is then you need help. You need a friend.
An alternative universe.
Imagine, you get a knock from an inspector. You are calm and confident: you have a compliance report and the associated plan already in your hand. The inspector looks around your gaff and notes that a crack health, safety, and environmental team have found some problems and recommended how to solve them. Yes, there are some issues you have not yet fully resolved (remember we’re not all perfect), but you do have the plan, you can show that you are keeping to the plan and that you are monitoring progress.
A health, safety and environmental compliance report is not a cloaking device which makes things invisible (as used in a Klingon D7 Battlecruiser in Star Trek). If anything the compliance report will be a spotlight: it will be honest and clearly identify what is wrong and also what’s needed but also by when. The compliance report is more like a forcefield around your organisation (perhaps like that around Captain Kirk’s Enterprise or possibly more The Force as used for good by the Jedi in Star Wars). It’s written by professionals. It shows that you care about getting health, safety and environmental aspects right. As well as tracking the progress made, it also prioritises what more needs to be done. The inspector goes away happy(ish). The inspector may not even be back. The Force is now strong in you!
Do you have a choice?
You must be compliant with the law. You have no choice here.
But you can choose to ensure compliance so far as is reasonably practicable (or even go further with best or world class). To do this you might choose to put up your forcefield rather than annunciating “red alert, all hands stand at battle stations” and mustering your droids to try to defend against the force-wielders.
There are no absolutes in health, safety, and environmental risk management. If we again consider the plight of our motorist. They get pulled over while driving because of something small such as a blown rear light, they’ll probably be sent on their way with a word in the ear if they’ve got a clean licence, a valid MOT and insurance. If the same happens and one of these documents is faulty without a valid reason (and forgetting is not a valid reason), our motorist is likely to be subject to closer scrutiny and could end up facing a higher penalty. That is nothing though, compared to the penalties which apply to health, safety, and environmental convictions which for companies also form a permanent black mark on their record.
Many only see lawyers as useful after they have been nicked. Of course, they are! They will fight tooth and nail for your corner. But it will be tense and frenetic, and they will need evidence that you’ve done your best to achieve compliance. So, why not use the same lawyers to get you compliant in the first place (in a calm forcefield type way) before the knock on the door.
Working with a health, safety and environmental legal professional, is like putting a forcefield around your business. They’ll help you get compliant and defend the inspector’s knock. Legal professionals are not Jedi, but as Obi Wan Kenobi said to the Stormtroopers who stopped him and Luke Skywalker while driving across Tatooine in The New Hope “These aren’t the droids you’re looking for.” Move on, regulators.