Updated: 5 March 2021
The UK Health and Safety Executive's decision to use two private sector firms to carry out workplace 'COVID security' assessments is being scrutinised by employers and their legal advisers, amid concern that staff at the two debt collection firms involved might not be best qualified for the role.
The two firms, Marston Holdings and CDER, were appointed in December to provide staff as 'spot check support officers' visiting businesses' premises to assess compliance with COVID guidance, including masks, sanitation, two-metre segregation and bubble arrangements.
The firms typically hold contracts with local authorities, the High Court, landlords, utility services and others, to enforce payment of a variety of civil debts, from court fines and parking tickets to unpaid bills.
The £7 million price tag for the two contracts is drawn from the HSE’s ring-fenced emergency injection of £14 million for COVID-related enforcement announced by the Department for Work and Pensions last May.
An HSE spokesperson confirmed to IOSH magazine that 127,878 spot checks had been carried out in total since the beginning of the pandemic (including telephone checks, visits by the outsourced spot-check support officers and visits by HSE inspectors and visiting officers).
They added that the companies were selected on the basis of 'their skills, infrastructure, staff and expertise', as well as having extensive field forces in England, Scotland and Wales, and prior experience in providing similar services for the public sector.
In addition to the two contracts for in-person visits, it’s understood that the HSE hired services provider Civica in August to run a telephone-based 'spot check' service and a COVID-19 hotline where alleged guidance breaches can be reported.
On their in-person visits, staff from Marston and CDER carry letters explaining that they are only authorised to look at COVID security arrangements, that they are not warranted to take any enforcement action or issue a Fee for Intervention (FFI) notice, and that any apparent breaches would be referred back to the HSE for further action.
'The number of inspections increasing is a good thing, but it’s about the quality of the checks, not the quantity'
Julie Gowland, legal director at law firm Birketts, told IOSH magazine that she knew of three clients that had been visited: a construction company, a shipping firm and a production facility.
She welcomed the fact that the HSE’s move to hire the two firms had noticeably increased the number of COVID-19 visits in 2021 compared to 2020, when the HSE suspended all site visits at the beginning of the March lockdown, only resuming in May or June.
But she warned that the outsourced team might not bring the same rigour to the role as HSE staff. 'Debt collection firms aren’t really a substitute for the years of experience that historically HSE inspectors would have had. We’ve definitely seen an increase in new style HSE visits, but a few clients have reported back that they aren’t as robust as what the HSE might have done previously.
'The number of inspections increasing is a good thing, but it’s about the quality of the checks, not the quantity. There’s no point having multiple inspections if they’re not increasing education and engagement. One client reported that the [COVID support spot check] officer asked to see a director, and when they were told the person wasn’t available they left. From experience, the HSE would have gone a bit further.'
She added that the two firms 'weren’t the obvious choice' for the support officer roles. 'If the HSE has had an injection of £14 million, some might question how well spent and target that money is – but time will tell,' she noted.
Julie also felt that the contracts highlighted how under resourced the HSE was. 'It’s using a plug to stop a leaking barge – we’ve had years of cuts. This also coincides with a decrease in the number of cases coming to court. Possibly there’s now far more compliance, but I suspect that resources are also the issue,' she said.
Prosecutions brought by the HSE have fallen from 711 in 2015/16 to just 355 in 2019/20.
Manchester-based solicitor Rhian Greaves, a partner at Pannone Corporate, agreed that the move highlighted historic underfunding. 'The HSE has just been completely overwhelmed by the number of calls and requests for help, £14 million isn’t really going to be enough. But one good thing that could come out of this is that people realise how badly resourced the HSE has been over the past 10 years, bearing in mind the lower numbers of prosecutions and enforcement notices.'
The HSE defended the move, saying: 'The introduction of proactive spot check calls and visits during the pandemic has allowed us to significantly scale up our proactive work to check, support and advise businesses on the implementation of the Public Health Safer Workplace guidance whilst supporting local authorities and the sectors they regulate, and responding rapidly to local outbreaks.
'A key benefit of this approach is that it allows our highly experienced inspectors to focus on more complex COVID-19 work, in addition to investigating reported concerns and investigating incidents.'
However, union representatives have also voiced concern at the move. Mike Clancy, general secretary of the HSE inspectors’ union Prospect, told Construction News that the private contractors’ 'tick-box checks' were a poor substitute for experienced inspectors.
'Lower-quality "spot checks" delivered by the private sector further highlights the structural lack of capacity in HSE, thanks to a decade of underfunding,' he said.
Solicitor Stuart Armstrong, who practises at York-based SV Armstrong, commented that the two firms’ staff appeared to have similar powers to HSE 'visiting inspectors', who are not fully warranted inspectors but can refer any issues uncovered in workplaces back to their colleagues.
Stuart said: 'It sounds like they’re trying to appoint additional visiting officers without having to recruit them. What the training is like, I’ve no idea.'
The HSE’s most recent annual report showed 1,059 'inspectors and visiting officers' in 2019-2020, a number that has been broadly stable for the past four years. However, it compares to 1,342 in April 2010.
The HSE’s outsourcing move comes at a time when it is likely to be facing a financial shortfall due to the COVID pandemic. The annual report warned that the crisis would have a 'material' effect on its income, from Fee for Intervention (FFI) and providing services to other enforcement agencies and departments such as DEFRA.
'It sounds like they’re trying to appoint additional visiting inspectors without having to recruit them. What their training is like, I’ve no idea'
The appointments were made by the regulator in December without any HSE publicity, although the two firms concerned have issued press releases; the tendering process that preceded the contracts also went under the radar.
One construction commentator suggested that the two firms could already be handling outstanding Fee for Intervention invoices for the HSE and therefore offered a 'two for one' deal – IOSH magazine put this question to the two firms, but had not received a reply before publication.
Stuart said that 'sometimes firms do delay payment of FFI debt and I don’t think the HSE want its staff to spend time chasing payment.' However, Rhian felt that recipients usually settle any FFI notices promptly, making it less likely that the HSE had a prior link to the firms.
An HSE spokesperson told Construction News in January that the regulator had had 134,470 workplace 'involvements' since the beginning of the pandemic, visiting 33,088 businesses during that time, an HSE spokesperson said.
At that time some 192 incidents have resulted in it issuing notices, although there are not thought to have been any prosecution linked to breaches of COVID security guidance so far.
Responding to IOSH magazine, the HSE said that most businesses that had received spot-check visits or calls were compliant with COVID-secure measures.
It added: 'Those that we are finding need to do more are, in the main, bringing up their standards after further guidance and support from the HSE. Where we find businesses aren’t managing the risk, the HSE will take action. This can range from the provision of specific advice, issuing enforcement notices and stopping certain work practices until they are made safe. Where businesses fail to comply, this could lead to prosecution.'
The HSE’s outsourcing move comes at a time when it is likely to be facing a financial shortfall due to the COVID pandemic. The annual report warned that the crisis would have a 'material' effect on its income, from FFI and providing services to other enforcement agencies and departments such as DEFRA.