'Responding to the Government's Agenda'
Centre for Corporate Accountability Conference on Directors Duties and Safety Enforcement - 19th November 2007.
Thank you for inviting me to speak.
This is a timely and important conference.
I welcome the opportunity to put the TUC's view of the Government's agenda on directors' duties and enforcement.
Issues that may not exactly hog the headlines or be at the centre of mainstream political debate, but that can quite literally be a matter of life or death.
But before I set out our response to the Government's agenda, I want to put the contemporary debate about health and safety into a bit of context.
A couple of weeks ago the HSC published the health and safety statistics for the past year, which revealed that 241 workers died at work - the highest number for five years.
But however appalling that figure is, it only tells us part of the story.
We have to remember the 5,000 people killed last year because of asbestos exposure, the thousand killed in work related road accidents, the many thousands killed by workplace cancers every year, as well as those who suffer heart attacks as a result of overwork or stress.
Nobody knows how many people die prematurely every year as a result of work, but it is certainly well over 20,000 a year - and every single one of these deaths was avoidable.
The Health and Safety Executive estimates that over 80% of injuries are a direct result of management failures. What that means is that the vast majority of deaths are simply down to management breaking health and safety laws.
The same is true of the 2.2 million people who are suffering from an illness they believed was caused or made worse by their work.
To me this is a crime wave on a massive scale. A crime wave that screams out for action.
Why is this not on the front page of every national newspaper? Why are there not editorials demanding action? Why are we putting up with it?
I guess it is simply because we have become immune to it. The aches and pains that work causes have become accepted as part of life.
We seem to have accepted the lie that it is somehow acceptable to allow one in every three nurses to suffer from a bad back, or four in ten headteachers to endure stress-related conditions.
This is clearly a national disgrace that is crying out for action.
Last year, there were over a quarter of million reportable injuries and over 600,000 new cases of ill health caused by work.
Yet the total number of convictions was less than 1,400.
And if you exclude the small number of fines against very large companies of over £100,000, the average fine is well under £10,000 for each conviction.
So not only are your chances of getting convicted tiny, but the penalty if you do is little more than a slap on the wrist.
Basically fines under the Health and Safety at Work Act are broadly comparable with those under the Environment Act for offences such as fly tipping.
And us be clear - health and safety crimes are not just an administrative misdemeanour or an oversight.
Take a case that was heard in Oldham last month. A butcher's shop illegally employed a 15-year-old boy to do mincing in an unguarded machine. The boy's arm got trapped and he was stuck for 2 hours in the machine. He lost both his hand and most of his right arm. The owner knew what he was doing was wrong, yet received a fine of just £18,000.
The week before an Enfield timber manufacturer was found guilty after a machine operator lost 2 fingers. This is because the employer had deliberately and knowingly removed the cutter protection. In this case, the fine was only £4,000.
The TUC has got records of half a dozen cases like these in the last month alone. They show that when an employer is successfully prosecuted for breaking health and safety laws - and where there was the potential to kill a worker or a member of the public - they will almost always escape with a small fine.
Now don't get me wrong, I don't believe that the answer to health and safety is to lock up every director and every employer for not doing a risk assessment, but we do need to rethink the purpose of enforcement action.
For the TUC, enforcement really has four purposes.
First - punishing the offender.
Second - preventing reoccurrences.
Third - deterring others from negligent behaviour.
And fourth - giving a sense of justice to the victims or their families.
Evidence shows the most effective way to change behaviour is strong enforcement action, supported by advice and guidance.
And there is also evidence of a clear link between enforcement levels and injury rates.
So if we know enforcement works, then why are we not doing more to enforce the law?
I think part of the answer lies in the Government's attitude towards enforcement.
We get positive messages from Ministers like Lord McKenzie and from the Chief Executive of the Health and Safety Executive. We have also had recent statements from a number of Ministers about the importance of enforcement action to protect vulnerable workers.
But at the same time, the message that is coming from 10 Downing Street, the Cabinet Office and the newly created Department for Business, Enterprise and Regulatory Reform is that the role of government is to remove burdens on business.
If you look at the latter's website, there would be no hint that part of its role might be to promote regulation as being a good thing.
And that is part of the problem. If one half of the government sees regulation as a dirty word, then it makes life very difficult for the other half who recognise the importance of protecting the vulnerable.
And the government's attitude to enforcement seems very uneven. Companies are far more tightly regulated on financial affairs - they have to produce annual reports on turnover and profits, they have to submit annual returns to Companies House and are automatically fined if they fail to do so. Yet they do not even have to report how many of their workers they injured or killed during the previous year.
We also ensure restaurants, cafes and supermarkets are inspected every year by local authorities. But those employers who are inspected by local authorities on health and safety can expect a visit, on average, every 20 years. Yet health and safety breaches are responsible for far, far more deaths, injuries and ill health than breaches of food hygiene regulations.
Despite this, we are constantly hearing about the burden that health and safety places on business. It is not a burden to expect an employer not kill or injure their employees. That is a basic requirement within any civilised society.
Unfortunately, the government seems to have been taken in by employer lobbying about so-called 'red tape'. They set up the Hampton Review of Regulation, but surprisingly its remit did not include looking at the advantages of regulation to the victims of corporate corner-cutting.
Each government department has also been asked to reduce its administrative burdens on business by 25%, despite the National Audit Office describing this as completely arbitrary and meaningless.
The Government has set up a better regulation executive, and have insisted all new legislation be audited, not for the effect it is likely to have in protecting workers, but on the cost to employers. This means that any new regulation has to be justified by showing that the overall cost is less than the financial benefit.
How can you possibly apply this principle to health and safety? How can you put a value on someone's lung function, or the cost to an individual of developing dermatitis, or losing 20 years of your life expectancy?
What this means is that it is now much more difficult to actually get new regulation on health and safety through the Government.
And there have been other consequences of the better regulation agenda. Any employer can now pick up the phone, and ask for any piece of regulation to be reviewed. However stupid an idea, it now has to be investigated - involving time and expense.
In fact this open invitation has drawn less than a hundred responses, and only a couple in the health and safety field. Some bright spark even suggested withdrawing the requirement that health and safety posters are displayed - which the HSC was then compelled to investigate.
Let me make one thing clear.
The TUC does not support unnecessary burdens on business, nor are we for regulation for its own sake. Simpler regulation is beneficial not only to employers, but also to safety representatives who have to know about all the laws as well.
That's why we've worked closely with the Health and Safety Executive to simplify regulation while not reducing the level of protection. This has led to the merger of all the various construction regulations and the merger of the asbestos regulations. We now have far less regulations on health and safety than we did 35 years ago.
We also support a joined up approach to regulation. There is no point in an employer having 4 or 5 visits from different regulators when one would do. The TUC is looking at this and will shortly be announcing concrete proposals on regulation, and enforcement of employment protections more generally.
So what is the TUC's agenda, and how does it relate to the points the Minister made?
We certainly welcome the Corporate Manslaughter and Corporate Homicide Act. Although it took 10 years to get on the statute book, and at times I wasn't sure it would ever make it, I know how much effort the Government put into ensuring it finally became law.
Despite its shortcomings, the new law is an important step forward.
But while it will make prosecution of companies easier, it will not tackle the small core of criminally irresponsible employers, especially the directors of large companies.
As you will be hearing later today, the Corporate Manslaughter Act applies to corporations not to individuals. But as the TUC has always said, it is not companies that kill people - it is decisions made by other people, and that also needs to be addressed.
That is not to deny there has been a significant change in responsibility at boardroom level in recent years. Many companies now have a director responsible for health and safety, and some even have it as a standing item on their board agenda. That is to be welcomed.
But is this leading to a practical change in culture at workplace level? Certainly the injury and illness figures do not indicate any real progress.
Last month the Health and Safety Commission and Institute of Directors published new guidance on directors' duties - again something we welcome. But it is guidance on the current law, and the current law is simply wrong.
It has failed to, and never can, bring individual criminal employers to justice. If a director of a large company simply refuses to take any responsibility for health and safety, there is very little that can be done, beyond prosecuting the company itself. That has to change. For that reason, more than any other, we need a positive duty on directors to provide a safe working environment, and to make sure that all activities are safe.
The TUC wants the new guidance, along with the Corporate Manslaughter Act, to work. But while we hope it will change boardroom culture, it will not deal with the small number of employers who habitually break the law.
That's why the TUC will, at a later date, be coming back to the government with proposals for a new duty on directors, aimed at those who refuse to take responsibility.
So in conclusion what do we want? Well, I have deliberately avoided spending too much time on directors' duties and the Corporate Manslaughter Act because you have got specific sessions on these. But I reiterate: a statutory duty on directors is high on the TUC's agenda.
We also need higher fines, and we want the courts to enforce them. We know that the government supports this, but they have done since 2000 and, despite four attempts to change the law, parliamentary time has not been made available.
But most of all, we want more inspections and enforcement activity. After being in freefall for the past decade, the level of enforcement activity is now increasing, with a rise in the number of prosecutions.
However, to maintain that progress, we need more resources for the HSC. We have already seen the HSC's workforce shrink by 500, while the DWP is proposing that the HSC should receive a 5% real terms cut in its budget for each of the next 3 years.
This would have a disastrous effect on enforcement. We have already seen a big jump in reported levels of occupational ill health this year. If the government goes ahead with these proposed cuts, then we will see more injuries, more illness, and more being spent on medical treatment, sick pay, benefits and compensation.
When Lord Robens wrote his seminal report over 30 years ago, he envisaged every workplace being inspected every year. Instead what we have is workplaces being inspected, on average, once every 20 years.
We know that enforcement works. If we were to give the HSE the resources it needs to inspect and to support prosecutions, if we gave courts the ability to impose sentences that actually meant something, then we could make a real difference.
But ultimately the debate about enforcement isn't about funding levels, or the finer points of health and safety practice, or the minutiae of legislation.
First and foremost it's about people.
Protecting people from unnecessary illness or ill health.
Helping families avoid the trauma of bereavement or life-changing injuries.
Saving people's lives.
None of us should ever forget that.
So together let's commit ourselves to making a difference where it matters most.
And let's make Britain's workplaces the safest in the world.
Thank you.
Minutes and agendas (2,400 words) issued 19 Nov 2007
