The confirmation follows a six-week consultation and is a change from the previous process, whereby disputes were considered by a panel consisting of two HSE members and one independent member.
From 1 September any disputes will be heard by a panel of a lawyer, acting as chair, and two independent members with practical experience of management of health and safety.
Health and safety expert Kevin Bridges of Pinsent Masons, the law firm behind Out-Law.com, said the commitment to transparency and independence for the FFI appeal process was welcome, but he added there “remains potential for conflict”.
“For example, transparency would have been further enhanced by guidance on the composition of the disputes panel, particularly if parties cannot agree on this, and as to how the panel will make its decision - is it to be by a majority? Does the panel chair have the ultimate decision making power?” Bridges said.
“We can foresee some situations where the reality of the matter in dispute is one where the lawyer chair will be better qualified to make the decision, albeit with factual and technical input from the other two panel members, because it is ultimately a question of law. It seems illogical for it to be possible for the chair's decision to be overruled in such circumstances,” Bridges said.
The changes come five years after FFI was introduced on 1 October 2012. The scheme was designed to shift some of the costs of regulating workplace health and safety from the taxpayer to those responsible for breaches. Those found to be in 'material breach' of health and safety laws are liable for payment of HSE's related costs, including those incurred as a result of inspection, investigation and taking enforcement action.
Bridges said FFI invoices were, in practice, rarely challenged in the past as businesses tended to view paying the bill as the most time, cost effective and commercially sensible solution given the limited scope for challenge under the existing regime.
“Continuing with this approach could have significant consequences for businesses, however, given that evidence of previous breaches might be introduced as evidence during a trial and is also relevant in a number of potential ways under the Definitive Guideline for Sentencing in Health and Safety, Corporate Manslaughter and Food Safety and Food Hygiene Offences. ,” said Bridges.
“Time will tell if the new independent dispute process, coupled with the ever increasing fines will change this,” Bridges said.
Under the new process, the duty holder can dispute any fees raised under the scheme. Queries about invoices are passed first to an inspector. If duty holders are dissatisfied with the inspector's response, they can then dispute all or part of an invoice. These disputes will now be considered by the newly independent panel.
The consultation leading to the new process was sparked by an application for judicial review of the FFI dispute resolution mechanism, brought by facilities management firm OCS Group UK Ltd.