HEALTH and Safety is tightly regulated and, following a recent change, the costs of non-compliance have increased.

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HEALTH and Safety is tightly regulated and, following a recent change, the costs of non-compliance have increased.

If you break the Health and Safety laws and you or your company is prosecuted and convicted by the Health & Safety Executive (HSE) then you can expect to pay the costs of the prosecution.

But did you know that now you can be required to pay the costs of the investigation even if you are not taken to court?

From October, the HSE became entitled to charge a “fee for intervention” which will cover the cost of “identifying material breaches of the law”, helping you to put them right and then any subsequent investigation and enforcement action.

The Government has introduced this in order to ensure that businesses should pay for the costs of putting matters right rather than the public purse.

A material breach is one which is sufficiently serious for notification to be given in writing by means of a notification of contravention, an improvement or prohibition notice or ultimately a prosecution.

Examples might include not providing guards to dangerous parts of machinery or allowing the release of asbestos fibres due to materials containing asbestos being in a poor or damaged condition.

Time will be charged at an hourly rate and you can be sure that every minute will be accounted for.

These rules currently apply only to HSE investigations but, in the current political climate, if there is money to be made, it seems certain other agencies will follow.

This change should be seen as part of a shifting landscape relating to the costs of investigations and proceedings.

Also from October, the law has changed so that any company prosecuted and subsequently acquitted of any or all of the allegations it faced in the criminal courts is unable to recover the costs of its defence from central funds.

This significant change was made by the Government in the face of substantial opposition and on the basis that companies should insure against the risk of prosecution, including the cost of defending those proceedings.

If you require further advice on an investigation by the HSE or any other regulatory agency or authority please contact Hugh Rowland.

: : Hugh Rowland is a partner at Gotelee Solicitors.

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