New code means fewer inspections for low risk retailers, says resident law firm

With 1.6m workplaces enforced by local authorities, complete health and safety vigilance has always been an unrealistic goal. As a result, for a number of years workplaces have been rated based on their risk levels, in order to determine how frequently they should be inspected. This more targeted approach has now become a formal requirement, detailed in the National Local Authority Enforcement Code (NLAEC), published on 29 May 2013. Dominic Watkins, senior associate in the retail sector group at Retail Times’ resident law firm, DWF, explains what this means for retailers

Watkins: targeted approach

Watkins: targeted approach

The new approach introduced by the NLAEC is a recognition the previous, ‘one size fits all’ method of carrying out health and safety inspections should not be a default option. By encouraging local authorities to use the full range of regulatory interventions to influence retailers’ behaviour, the code reserves the use of proactive inspection for higher risk premises.

No more inspections?

As a concept, this risk-based approach is not new. For many years local authority enforcement has been led by intelligence, at least in theory. However, many retailers believe this approach is not being put into practice. 

The new system will not see inspections disappear entirely, if there is a good reason: ie if intelligence suggests there is a health and safety issue at the premises, a proactive inspection would still be appropriate. Similarly, a range of retailers will still be viewed as high risk, such as: 

  • Betting shops, off-licences or other places of work where staff may work alone or late at night, potentially exposing them to violent situation
  • Industrial retail or wholesale premises such as steel stockholders, builder or timber merchants, where there is a higher risk of staff suffering injuries or fatalities
  • Warehousing and distribution areas, where staff could potentially fall from a height
  • Commercial catering premises using solid fuel cooking equipment where there is risk of carbon monoxide poisoning
  • Premises with cooling towers or evaporative condensers where there is a risk of infection from legionella

This more targeted approach should mean retailers that still fall within the scope of the proactive inspection regime will be under even greater scrutiny, as the inspectors’ focus will be placed on the areas of greatest risk.

While the practice of specifying higher risk areas for proactive inspection is new, the concept is not. One can only hope that officers will adhere closely to this more formal approach.

A change of emphasis?

Concerns have been raised that selective regulation will meanbusinesses will pay less attention to workplace safety risks, but this is unlikely to be the case. All responsible retailers have safety at the top of their agenda, and no business wants to break the law, or see its insurance premiums rise as a result of accident claims.

Even if retailers’ safety standards fall, local authorities will still be notified of all reportable accidents, putting them in a strong position to investigate based on the intelligence provided to them, particularly in the case of more serious incidents.

The code should also result in more robust questions being asked of local authorities, in order to ensure they are not only complying, but using their budgets effectively.

So is this really anything new?

Similar schemes to NLAEC have previously been run, such as the Enforcement Concordat, and more recently the Regulators’ Compliance Code. The principles of targeting, consistency, proportionality and transparency are nothing new, but the way in which they are now being interpreted and used is.  

As a means of supporting economic growth through the reduction of red tape, a return to the provision of advice to businesses to facilitate growth will be welcomed by most, as would the clear categorisation of most retailers as low risk by the HSE.

NLAEC also increases the significance of the Primary Authority scheme, which provides local authorities with the ability to support businesses in health and safety matters. While it is already enshrined in statute, recent developments will allow those in Primary Authority schemes to strategically engage with multiple local authorities, in turn reducing the frequency of HSE visits.

Will there be change?

As local authority budgets have been squeezed over the last five years, there has been a significant reduction in the volume of enforcement action by regulators. This has not, however, been met by a similar reduction in proactive regulator visits. 

While there has been significant buy-in from local authorities’ senior management, it appears as though this commitment has not made its way down to grass roots officers, who, generally, continue in the same way that they always have. As a result, retailers have long been asking for the chance to show that they can manage regulatory risk effectively and without intervention.  Perhaps, finally the vast majority of the sector has got its wish.