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Earning your stripes

In recent years national chains have suffered from inconsistent enforcement of legal standards in many areas, notably health and safety, food hygiene, trading standards and fire. Larger businesses are enforced by different Local Authorities (LAs) around the country, each with their own environmental health practitioner (EHP). This provides opportunities for different interpretations of what the law means, and often inconsistent enforcement.

In health and safety legislation, expressions such as ‘suitable and sufficient’, ‘adequate’ and ‘fit for purpose’ leave room for interpretation. So businesses enforced by LAs can now approach one LA and request that it becomes their Primary Authority (PA) for advice and guidance. Providing the two parties agree, they can then apply to the Secretary of State via the Better Regulation Delivery Office (BRDO) for the partnership to be officially sanctioned.

There are a number of advantages of doing this. A business can develop and agree an inspection plan with its PA. While it must reflect the enforcement priorities set by the HSE for that year, it provides an opportunity to include other safety systems. If another LA then wishes to undertake an inspection, it is obliged to follow this inspection plan. If it wishes to deviate from the plan, it must receive permission from the PA first. The results of the inspection are usually shared with the PA once it is complete. This is helpful because other LAs use the inspection plan to focus attention on local performance in the application of the company safety systems, and the PA remains the single point of challenge for the safety system design.

“A Primary Authority partnership is not free of course; there are no fixed models for charges but most PAs charge its businesses by the hour to recover its costs.”

A business can also approach its PA to obtain assured advice. It explains the risk to the PA and how it controls it. For example, a retail business may explain how it controls slips and falls by implementing and enforcing a clean as you go policy with employees and having robust spillage procedures in place. If the PA agrees that the controls are adequate, it publishes assured advice on the Primary Authority Register on the BRDO website (only LAs have access to this part of the website). Once the advice is published, other LAs are obliged to accept it and if they don’t, they must challenge it with the PA. In reality this saves EHPs time because they do not need to visit the business as frequently because they are content that another LA has looked at the situation and is willing to issue assured advice. This has helped to decrease the number of EHP visits that national businesses experience, saving everyone time and effort.

It’s worth noting that assured advice can be revoked. If a PA receives valid evidence illustrating that the safety system is not fit for purpose, it can withdraw its advice. Therefore the PA will conduct meetings and site visits to check that its advice remains current and the business is obliged to keep it up to date with any changes. In fact, if a business has a safety issue that it is not yet controlling well, it can admit this to its PA and inform it of the plan to improve. If any other LA then challenges them, the PA can explain what the organisation is doing and that it is working with the business to ensure eventual compliance. Again, this saves time and effort for all.

There has been an interesting development in the use of assured advice – retailers are exploring how it may be helpful to defend compensation claims. In fact, there is even consideration as to whether PA EHPs should be subpoenaed to provide evidence in civil cases when the need is warranted.

A PA partnership is not free of course.  There are no fixed models for charges, but most PAs charge its businesses by the hour to recover the costs of its time spent on the partnership. Not only have retailers benefited from PA partnerships by obtaining earned recognition that they are compliant and safe, but PAs have benefited too. EHPs have had much closer access to the challenges that business face and the commercial reality of keeping people safe in businesses operating in very competitive markets.

The businesses regulated by LAs have a distinct advantage over those that are regulated by the HSE. While the former can now use PA partnerships to obtain independent, earned recognition that they are compliant with legal standards, HSE regulated businesses cannot. At a time when the HSE has to find ways to fund itself while also considering taking on more LA regulated premises, will it adopt a version of this model too? We’ll have to wait and see.

Featured in Insight (September 2016)