Health and Safety Executive

Health and Safety Executive

Discretion and Judgement:

HSE’s approach

Mike Cross3 June 2014

Power in your hands – use with care!

FACT!

• The decisions regulators make matter because, good or bad, they can have huge impacts on businesses, workers and consumers

• Is discretion required in making regulatory decisions?

YES!

• But within a clear policy framework and with one exception (which I will pick up at the end)

Regulation with no discretion?

Would require:

• Black and white rules – no shades of grey

• Lots of lists…

• Would result in:– Lack of credibility– Poor relationships– Negative outcomes

Regulation with too much discretion?

Would result in:

• Lack of transparency

• Lack of consistency

• Potential lack of fairness

• Potential for poor decisions

• Potential for corruption / perception of corruption?

• Reduced credibility

• Negative outcomes

But poor application of discretion

Poor decision making → Bad regulation → Poor outcomes

What does good look like?

Good discretion requires:

• Well targeted work programmes

• Clear and transparent enforcement policies supported by guidance and procedures to enable effective decision making

• Competent staff

Discretion over investigations

• Should inspectors have discretion about what they investigate?

Very little!!!

• In HSE, there are clear criteria applied – all incidents which meet these MUST be investigated by HSE

• This ensures we focus our resources on the most serious

Discretion over who to inspect

Should inspectors have discretion about where they inspect?

• Not much!!!

• Inspections are based on:– Intrinsic hazards – sector, high hazard

processes– Standards of risk management – previous

inspection history– Other intelligence – complaints, adverse plant

inspection reports

Discretion over inspections

Should inspectors have discretion about what they inspect (i.e. the inspection agenda)?

• Yes!!!

• Inspectors dealing with major hazard sites plan in advance what to look at based on the safety case

• All HSE inspections require the inspector to select the most appropriate health and safety topics which will enable them to determine how well the business is managing health and safety

• Inspectors also need to able to respond to the unexpected – matters of evident concern

Individual decision making

CLEAR POLICIES

Enforcement Policy StatementEnforcement Management Model (EMM)Enforcement Guidance

CLEAR STANDARDS

LawApproved Codes of PracticeGuidanceTechnical Standards

COMPETENT INSPECTORS

Regulators Training ProgrammeRegulators Development Needs Analysis Tool (RDNA)Peer Reviews

Individual decisions - Standards

• Being clear about what compliance looks like is key. Benchmarks include:– The Law, e.g. specific Regulations for

hazardous substances or lifting operations

– Approved Codes of Practice and HSE guidance

– Industry Guidance– Expert Opinion

Individual decisions - EMM

Enforcement Management Model (EMM):

• Provides inspectors with a framework for making consistent enforcement decisions

• Helps managers monitor the fairness and consistency of inspectors’ enforcement decisions in line with HSE’s policy

• Supports transparency – helps businesses and workers effected, in their understanding of the principles inspectors follow when deciding on a particular course of action.

• Find these tools here: http://www.hse.gov.uk/enforce/emm.pdf

How EMM works (1)

• Is there an immediate risk of serious personal injury? If so, TAKE IMMEDIATE ACTION

• What is the level of harm created by the activity or process?

• How well is the level of harm being controlled? – the RISK GAP

• Based on the level of harm and of control, what is the INITIAL ENFORCEMENT EXPECTATION? – Prosecution, Notice, Letter?

How EMM works (2)

• Apply LOCAL FACTORS to the INITIAL ENFORCEMENT EXPECTATION:– Dutyholder record– Dutyholder attitude– General standards– Whether risk of harm has led to injury

• Apply STRATEGIC FACTORS:– Action will lead to sustained compliance– Action will send appropriate warning to others

Individual decision making – RTP

• Inspectors joining HSE undergo 3 year’s training called the Regulators Training Programme (RTP) :

• 2 year core programme which includes:– Off the job training – assessed tutorials covering

law, enforcement, technology, occupational hygiene

– On the job training – joint visits, solo visits

• Satisfactory completion of the programme – assessed against a Professional Practice Framework - leads to a post-graduate diploma in occupational health and safety

• Final year of programme depends on specific role

Individual decisions - RDNA

Regulators’ Development Needs Analysis Tool (RDNA):

• Specifies the knowledge and skills required of a good regulator

• Self assessment tool with manager validation

• Process involves identifying on-going and new development needs in line with regulators’ role, experience and ambition, and in line with business needs

• Also includes related tool to help meet development needs – GRIP

• Find these tools here: http://www.rdna-tool.bis.gov.uk/

•Questions?????????????