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HSE REQUIRED TO SOFTEN ENFORCEMENT POLICY

Proportionality requires regulator to expect a focus on ‘significant’ risk

The HSE Board meets today (9 March 2016) and will be informed of changes to the HSE Enforcement Policy Statement (EPS). Changes to the EPS are “legally required” to comply with the Government Regulators’ Code.

The changes have been incorporated into a Revised HSE EPS which will be published “as soon as possible”.

HSE believe that the changes make HSE compliance with the Government Code more explicit and visible to stakeholders, particularly as regards proportionality.

New EPS mirrors HSE risk assessment policy

The new “proportionality” clause is at para 5.0 of the EPS and is reproduced below. We have bolded the most significant changes in the text.

The first change requires HSE enforcement to consider “growth” whilst the second puts the enforcement policy in line with HSE statements regarding risk assessment stressing that HSE expects dutyholders to focus on “significant risk”.

The new EPS states:

5.1 We adopt a proportionate approach to enforcing the law across different industries and sectors, recognising the importance of supporting businesses to comply and grow.

5.2 In our dealings with duty holders, we will ensure that our enforcement action is proportionate to the health and safety risks* and to the seriousness of any breach of the law. This includes any actual or potential harm arising from any breach, and the economic impact of the action taken.

5.3 We expect that duty holders, in turn, will adopt a sensible and proportionate approach to managing health and safety, focussing on significant risks i.e. those with the potential to cause real harm.

5.4 Applying the principle of proportionality means that our inspectors should take particular account of how far duty holders have fallen short of what the law requires and the extent of the risks created.

5.5 Some health and safety duties are specific and absolute. Others require action “so far as is reasonably practicable”. Our inspectors will apply the principle of proportionality in relation to both.

5.6 Deciding what is reasonably practicable to control risk involves the exercise of judgement. Our inspectors, when considering the adequacy of the protective measures taken, will balance the degree of risk against the money, time or trouble needed to avert that risk. Unless it can be shown that there is a gross disproportion between these factors and that the risk is insignificant in relation to the cost, duty holders must take measures and incur costs to reduce the risk and comply with the law.

* In this policy, ‘risk’ (where the term is used alone) is defined broadly to include a source of possible harm, the likelihood of that harm occurring, and the severity of its outcome.”

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