At a time when there is an acceptance within the hospitality and leisure sector that monetary pressures are likely to rise with the forthcoming increase in the rate of VAT, there was a glimmer of hope in the recognition by the Prime Minister that "businesses are drowned in red tape, confusion and the fear of being sued for even minor accidents" and his proposal for a review of health and safety legislation by Lord Young.
The hope was that this review - just published - would lessen the costs incurred by business by reverting to the original concept of the Health and Safety at Work etc Act 1974, which was based on the reduction of risk through a proportionate response to that risk (that is, doing all that was "reasonably practicable") rather than the approach that many see as having encroached upon this concept, e.g. risk aversion through a fear of being sued.
The question is, has this review assisted the sector?
Key recommendations of the review include:
- simplifying the risk assessment procedure for low hazard workplaces
- exempting employers from risk assessments for employees working from home in a low hazard environment
- requiring that all health and safety consultants are accredited by a professional body
- consolidating current health and safety legislation into a single set of regulations
- amending the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 by extending to seven days the period before an injury or accident needs to be reported
- ensuring police officers and firefighters are not at risk of investigation or prosecution under health and safety legislation when engaged in the course of their duties if they have put themselves at risk as a result of committing a heroic act.
Some of these are clearly more relevant to businesses in the Hospitality and Leisure sector than others, for example, many may well fall within the definition of a "low hazard environment" and the use of a simplified risk assessment procedure and checklists should be welcomed and may result in costs savings. The recommendation is that the interactive forms will be launched by December 2010 at the latest and, by March 2011, the HSE will create periodic checklists enabling low hazard businesses to check and record their compliance with regulations along with online video demonstrations of best practice in completing forms. Indeed, a 20-minute online risk assessment for offices was launched on the same day Lord Young's Report was published, with other web tools for similarly low-risk workplaces are to follow. The HSE's view is that the risk assessment tool will help employers in office-based environments consider relevant hazards and think about how they control them. It will also help employers to avoid unnecessary paperwork and bureaucracy. It works by prompting employers to answer a series of questions about their workplace and then generates a unique risk assessment with series of actions. Similar online tools for other low risk workplaces are also being developed. These online assessments will be relevant to the office-based side of the sector.
A welcome recommendation, but one which may ultimately increase costs for some, is that requiring health and safety consultants to be accredited to a professional body. The recommendation is that initially the HSE will take the lead in establishing a validation body for setting standards for consultants, working alongside the relevant sector and professional bodies. The scheme will then be handed over to a self-financing independent professional body, which should draw up a disciplinary code in order to ensure that professional standards can be maintained and improved. A web-based directory of accredited health and safety consultants is to be in place by January 2011. Whilst, hopefully, improving the standard to be expected from consultants, the costs incurred by the consultants will inevitably be passed on to the client, so those in the sector who use external consultants may find a slight increase in costs.
However, such costs may be countered by a cost-saving should the recommendation for the consolidation of health and safety regulations in to a single-set of regulations be progressed. A reduction in the number of regulations will, while not diluting health and safety requirements, inevitably lead to a reduction in time spent on ensuring compliance across a raft of legislation. A consultation on this is to be launched in March 2011, and the sector should take steps to ensure its voice is heard and comments noted.
The extension of the period of time in which an accident needs to be reported to seven days will reduce the paperwork required to be filed following incidents (as well as improving accident statistics for both business and the HSE!) and, again, the sector must become involved in the consultation to be launched in January 2011 regarding whether RIDDOR is the right approach to providing information regarding workplace accidents.
A further cost saving may result from the proposal to combine, as many local authorities already do, food safety and health and safety inspections.
There is one recommendation within the section dealing with the combining of inspections, which should be of great concern to those businesses in the sector that provide food, namely the recommendation to make local authority participation in the Food Standards Agency's Food Hygiene Rating Scheme mandatory. In effect this means that where businesses serve or sell food to the public, they will be given a rating of 0 to 5 which will be published in an online database in an "open and standardised way".
The recommendation initially promotes the encouragement of businesses to voluntarily display their ratings, but then states that this should be reviewed after 12 months and, if necessary, display will be made compulsory - particularly for those businesses that fail to achieve a 'generally satisfactory' rating.
Our concern, as the provider of legal advice to many such premises, is that this proposal is potentially more draconian than a prosecution. Not only is there no appeal mechanism for a challenge to the rating, there is also a risk of disproportionate punishment. For example, a premises may have a one-off poor inspection leading to a "Generally satisfactory (grade 3)" rating or even an "Improvement necessary (grade 2)" rating. The business may then undertake all the necessary work (which may be very little) to respond to the inspection, but, whilst the Report recognises that the business "should be able to request an additional inspection", there is no guarantee that this will be undertaken quickly. The rating may, therefore, persist for many, many months potentially affecting the businesses profit margin and reputation to a far greater extent than a prosecution.
As well as these practical concerns, there is also the concern that the whole concept of mandatory display of ratings may fall foul of the EU hygiene legislation. This is clearly an issue we and businesses in the sector will have to watch very carefully.
The Report does appear to be business-conscious with a clear steer towards reducing burdens and, as Lord Young states, "The aim is to free businesses from unnecessary bureaucratic burdens and the fear of having to pay out unjustified damages claims and legal fees. Above all it means applying common sense not just to compensation but to everyday decisions once again.'As with all reviews and recommendations, much will depend on the response to the consultations and the subsequent changes in the legislation and Codes of Practice; the devil as ever will be in the detail.