HSE enforcement during the pandemic
Whilst the HSE’s inspectors are now primarily working remotely, this does not mean that they are no longer carrying out regulatory oversight of duty holders’ compliance with their health and safety obligations. Obligations to report certain incidents under RIDDOR continue.
HSE has reprioritised its functions and as part of this:
- Has suspended its high-risk industries targeted inspection programme which includes construction and manufacturing.
- Has paused its offshore oil and gas and onshore chemical, explosives and microbiological industry inspections to allow duty holders time to overcome the immediate pressures and challenges arising out of the pandemic. It has not stated how long this pause will last, however, it has indicated that on resumption, their regulatory work will be reprioritised to critical areas and activities.
- Will undertake the regulation of the major hazardous industries remotely.
- Will endeavour to continue those regulatory activities which do not involve site visits including approvals authorisations, statutory permissioning activities such as licensing, safety case/ reports assessments, land use planning applications and hazardous substances consents.
Although the HSE has suggested it will be taking a flexible and proportionate view of the risks and challenges arising from the pandemic, it will continue to investigate any incidents which result in a fatality, very serious major injuries and dangerous occurrences and also reported concerns from the workforce or the public where people feel they are being exposed to risks from work activities including the risk of infection from inadequate COVID-19 protections.
It is likely that Local Authorities will follow the HSE’s lead on this issue and follow suit.
To manage the new risks in the workplace, do make sure that you evidence in writing your thinking through how you will control the risk of infection in your workplace and how the controls have been communicated to everyone. This needs to be in line with government guidance and include tightened hygiene (hand washing and cleaning), in some cases additional PPE, and social distancing. Do also bear in mind that if employee numbers are being temporarily limited, there may be other new risks that need managing if key personnel who would, for example, normally offer oversight of hazardous work are absent, or specific jobs would normally require people to work in close proximity.
Bear in mind that few health and safety offences have time limits for enforcement, so even if there is no immediate visit from an inspector in response to RIDDOR, these issues may be pursued long after business as usual resumes across the country.
Additional control measures need regular review as guidance is still evolving. Because it is evolving it might be worth incorporating a copy of guidance being followed in the risk assessments to manage COVID-19 issues, to help you demonstrate that measures followed thinking in place at the time. Keep the records of what you do. You may need them:
- In the event of a complaint leading to HSE inquiry now
- In the event of a subsequent inspection and query about what you did
- If there is a resurgence of the virus in winter and lockdown measures are needed again.
Julia Thomas, Health and Safety Solicitor and Joint Head of Legal with Finch Consulting
01530 412 777