TUC evidence to Lord Young review

Enquiry by Lord Young into the health and safety and compensation systems.

Submission by the Trades Union Congress

The Trades Union Congress represents over 6 million employed people in 58 trade unions. It campaigns for fairness and decent standards at work and promotes partnership with the employers and government to secure stable industrial relations, growth and prosperity.

We believe that workers have a fundamental right to protection at work and that we need both a regulatory and enforcement structure that ensures this. Health and safety in the workplace is very different from the issues around safety and risk in our everyday activities because the employee has no control over their workplace, and the system of work and level of protection are in the control of the employer. It is for that reason that the law makes the employer the person with the primary responsibility to maintain a safe and healthy working environment.

Overall, the TUC believes that the Health and Safety at Work Act has stood the test of time. Its basic premise, that employers have a duty of care and must protect the health safety and welfare of their workers and others, and should assess all work activities in order to reduce or eliminate risk, is uncontroversial and accepted by most unions, businesses, professionals and the public. However the legislation is primarily enabling and much of the application of the HSWA has been through regulation. Since 1992 that has focused much more on risk assessment rather than the setting of specific absolute standards. In principle the TUC supports that approach so long as employers carry out proper risk assessments and implement the findings. However this does not happen. Evidence is that around half of employers (mainly SMEs) have not even done a basic risk assessment.

The Act also seems to have been much more successful in controlling safety hazards than health risks.

In June 2010 it was announced that the number of deaths at work the previous year had been 151, the lowest ever and an 80% decrease since the HSWA was introduced. Much of that fall is however because of the decline of heavy manufacturing and mining rather than better safety protection. More importantly that figure only represents a tiny proportion (less that 1%) of the real death toll caused by work. Every year over 15,000 die as a result of occupationally caused cancers. Another 4000 are killed by lung conditions, 1000 while driving at work and an unknown number die as a result of premature death caused by overwork or stress.

The figures also do not show the number of people who have to give up work, or move to another occupation because of years of exposure to an occupational hazard. There are many professions where very few workers manage to remain working until they reach retiral age, such as scaffolding, hairdressing, and some heavy labouring jobs.

There is still a tendency to view occupational diseases and illness as being a thing of the past, mainly related to industries such as mining and heavy engineering. The reality is very different. Despite huge advancements in technology and changes in the labour market the editor of International Journal of Occupational and Environmental Health has claimed 'never in history has there been so much occupational disease as exists in the world today'. Much of this is because of the emerging problems of new jobs and new work methods.

There are also the 1.2 million people still in work but suffering an illness caused by work. Of these, 538,000 are suffering from a work-related musculoskeletal disorder and 415,000 from work-related stress. Most of these are not working in what are traditionally seen as 'high risk' jobs, but are instead working in what are seen as 'safe' jobs such as teaching or office work. Sadly we have a society that seems to see preventing injury as being more important than preventing illness, despite the fact that many occupational illnesses are more dehabilitating and last longer than many injuries. The TUC believes that preventing both are equally important.

The importance of preventing both injury and illness will be even greater as Britain comes out of the recession. Traditionally rates decline during a recession but rise afterwards as employers take on more new workers, and the effects of some of the cuts in training and occupational health provision are felt. If this is to be avoided the government will have to ensure that the HSE and local authorities have the resources to continue to support employers and workers. It should also, as the major contractor of services from the private sector, revise its procurement policy to ensure that a good health and safety regime is essential for those receiving public money.

Role of unions

We know that trade union make a major difference to health and safety within the UK because there is a wealth of evidence that their involvement both reduces injuries and improves the safety culture within an organisation.

Those employers who have trade union health and safety committees have half the serious injury rate of those employers who manage safety without unions or joint arrangements. Another study showed that where there is a union presence the workplace injury rate is 24% lower than where there is no union presence. All the evidence is that the arrangements that lead to the highest injury rates are where management deals with Occupational Health and Safety without consultation.

Trade unions see themselves as a part of the solution and dedicate a large proportion of their time and energy into supporting workplace representatives. In general the 150,000 health and safety representatives are better trained than line managers in health and safety issues. Trade unions have also been instrumental in ensuring that health issues, such as occupational stress, hearing loss, and asbestos have moved higher up the agenda.

Regulation and enforcement

At the time of its introduction, the HSWA probably created one of the most clear and practical frameworks on health and safety anywhere in the world - the only other countries with comparably low work fatality and injury rates are the Scandinavian countries which have a very similar legislative structure. However since 1989 more and more of the regulations made under it have been based on European Directives, which are in fact based largely on the same Anglo-Scandinavian principles as the HSWA.

There has been a trend in recent years to be apologetic about health and safety in general, and particularly regulation and enforcement. Regulation is seen as a 'burden of business' rather than the hallmark of a civilised society. The TUC would contend that any employer who cannot operate without putting the lives or health of their workers at risk is not fit to be an employer.

We do however welcome and support the work done by the HSE to simplify regulations and administrative requirements as these make for better, more effective, regulation where the level of protection is not reduced. This has meant that we now have 46% less regulation than 35 years ago and 37% less than just 15 years ago

It is not just the number of regulations that have declined. Over the last three years the HSE has reduced the number of forms used for collecting information from business from 127 to 54, a 57.5% reduction.

This has been done with the support of employers, unions and safety professionals, but the driving force has been a belief that we want regulation to be simple and effective. We do not believe that the regulatory agenda should be driven by a belief that there should be either more or less regulation, but, instead, that we should have the level of regulation that is proportionate and effective. As such, proposals for changing the regulatory framework by introducing principles such as 'one in - one out' can in no way comply with the principles of good regulation.

We are concerned about pressure from some parts of government to move away from the regulatory framework towards a 'voluntary' approach. The experience in all other areas, including seat belts, smoking restrictions and crash helmets is that the voluntary approach does not work and that only a statutory duty, backed up by enforcement where necessary, will ensure compliance. Where voluntarism has been attempted in the health and safety field, such as Ireland and the USA, the experience has not been positive.

Much of our regulation has been introduced to comply with European Directives. There is a misconception that the UK has traditionally 'gold-plated' health and safety regulation from Europe. That is certainly not the case and the UK already faces infraction proceedings in a number of areas because it has failed to implement European legislation adequately. What the UK has done is ensured that, when implementing European Directives, it places them in the context of existing UK regulation. This has meant that the UK regulations are, generally, more consistent and easy to understand than had the regulation simply been adopted out of context. In some cases it has also meant that the UK has managed to reduce and simplify previously existing legislation, such as with the recent construction regulations. This approach has been broadly welcomed by both business and workers groups.

Nor is regulation a 'burden'. According to research conducted by the Government in 2005 called the 'Administrative Burdens measurement Exercise' the average firm spends approximately 20 hours and just over £350 a year on the administrative costs of complying with the Management Regulations (mainly risk assessment). Given this figure includes a considerable number of very large firms, it is clear that the normal cost for smaller companies will be considerably less

Despite the complaints made by some employers about the number of inspections they get, the reality is very different. There are more traffic wardens in London than there are inspectors in the whole of HSE's Field Operations Directorate for the whole of Great Britain. It is estimated that the actual number of FOD inspectors is around 700 to cover all the inspections, investigations and prosecutions for all manufacturing (except chemicals manufacturing), the health services, education, all local authority activities, Govt departments and agencies, fire and police services, the defence industry and MOD, agriculture, fairgrounds, domestic gas safety, utilities, ports and docks, and others.

The level of inspection of employers is both low and inconsistent. In 1999/2000 the number of inspections made by HSE Field Operations Division inspectors was 75,272. In 2008/09 the number of recorded inspections was 23,004. This is a fall of 69.5% in 10 years. The number of premises that are covered by the Field Operations Division is 884,000 covering 15 million workers. This means the average premises could expect a visit by an HSE inspector once every 38 years. Compare that to the position of premises that handle food, which are visited at least once a year, however the number of deaths caused by food hygiene failings is far lower than the number of deaths caused by hazards in the workplace.

Nor should inspections be seen as being in any way negative. 89% of all employers who have had contact with the HSE have seen it as a 'helpful' organisation.

The TUC has concern over the levels of enforcement activity instigated by both the HSE and local authorities. The number of prosecutions has fallen from 1986 in 2001/2 to 1090 in 2008/09. There has been a similar fall in local authority's enforcement. The number of improvement notices and prohibition notices has also fallen dramatically. It is also clear that the HSE rarely prosecute for offences that can lead to disease as opposed to immediate injury.

We believe that prosecutions are a necessary part of ensuring that the culture within workplaces is changed and also, on occasion, that the injured person, or their family get a sense of justice.

The TUC is also concerned over the type and levels of penalties available. For most offences only a fine is possible. For some offences there is the possibility of imprisonment but this is rarely used and is only available for individuals, while most defendants are corporations. While we welcome the recent Corporate Manslaughter Act we do feel that much more needs to be done to increase the level and range of penalties available. The average fine for a health and safety offence is similar to that for 'fly-tipping'. Last year the average fine was £14,614 for each offence in cases taken by the HSE and £5,607 in local authority cases.

We also wish to see a legal duty on directors to ensure that their organisation does not put the health and safety of their workforce at risk. While we recognise that many company directors do take their responsibilities for health and safety seriously many do not and until there is a statutory duty on them to do so, as there is on individual employers, managers and suppliers, then this will remain a major loophole.

The TUC would however wish to emphasise that, although regulation and enforcement are important there is also a need for clear guidance and support for employers. Most employers do not deliberately break the law and need to be given advice on what they must do. Traditionally the guidance and advice that have been produced by the HSE have been second to none and much of the HSE material is now considered to be the international standard. In addition, the campaigns they have run on issues such as back pain and asbestos have been shown to have a very significant effect on changing behaviour. We hope that this work will be commended and supported within your review.

SMEs

There has also been much discussion of the problems of SMEs in health and safety. The TUC accepts that more has to be done to support SMEs and there is a case for ensuring that information and advice is specifically targeted at them, however it is important that all employers, regardless of size have the same statutory duty to protect the health safety and welfare of their workers.

It is a myth that SMEs are 'low risk'. In fact they have just as high an occupational illness rate as other employers, including many seen as 'high risk' such as nuclear. Unfortunately this is often hidden because SME's have a much higher rate of under-reporting of both injuries and ill-health.

Many small employers have very specific risks that could very easily be controlled but far too often are ignored. Examples are the very high level of serious skin complaints in hairdressers, the high levels of asthma in small bakeries, the level of violence in book-makers, the lung disorders in body shops, the levels of anxiety and depression in estate agents. In addition many of the most dangerous occupations are ones that are primarily conducted by small businesses such as agriculture and construction.

Unfortunately many small employers are either ignorant of their responsibilities or unsure of what to do. The HSE has already produced specific guides for SMEs on many issues and provide sample risk assessments for many SME sectors. In addition, the European Agency for Health and Safety are developing an on-line assessment tool for use by SMEs which will hopefully ensure that SMEs will find it easier to comply with the law.

The DWP have also recently established an occupational health helpline for SMEs to assist then in dealing with any work related health problems amongst their workforce.

We believe that initiatives like this can be effective and we welcome them. However the bottom line is that no employer is above the law, and just as they have to complete their tax returns in order to operate, so should they conduct a basic risk assessment.

Emergency services

It has been suggested that police officers should not be covered by the Health and Safety at Work Act while on duty.

This group provides an invaluable public service, often at great risk to themselves. There is absolutely no evidence that police officers are hiding behind the Health and Safety at Work Act or not intervening when people are at risk. Press reports that police officers have stood aside while people die have, invariably, have been shown to be inaccurate. The TUC does not believe that anyone should put themselves at risk unnecessarily and we should be proud of the behaviour of our police in protecting others. Sadly, since 2008, the TUC is aware of seven police officers who have died while on duty on the British mainland. These officers died while protecting others.

Emergency work is unique in that it involves decision making and risk taking in fast moving situations. They often perform many acts of bravery and heroism. Last year the Association of Chief Police Officers, HSE and Police Federation collaborated in guidance which recognised the specific difficulties that existed within policing but also expects forces to work to minimise risk. Officers are not expected to take an unreasonable risk where there is little chance of saving life or protecting property. This will assist senior police officers in balancing the risks involved in their duties to fight crime and protect the public, with meeting their health and safety obligations to their own employees and the public. We do not believe that any legislative changes are needed, but instead hope that police officers are given the support, training and equipment needed to ensure that they continue to fulfil their duties without taking unnecessary risks.

Consultants

There has been concern over the number of consultants and the level of expertise than many have. There is already a legal requirement on employers to use 'competent' advice, and the TUC believes that, where possible, this should be achieved through directly employing suitably qualified staff, or training existing staff. We welcome the work that is being done by the HSE to develop further guidance on competency. Organisations such as IOSH already have an accreditation scheme which ensures that their corporate members are both qualified and experienced.

Nevertheless we believe that most health and safety tasks can be done in-house and that most SMEs not necessarily need on-going advice from outside consultants. The resources on 'business link' and the HSE website would be suitable for most smaller business that do not have any specific high hazard areas, although there is a strong case for more training of line managers in all sizes of organisations.

The Health and Safety 'brand'

Health and safety often gets a bad press. We have seen stories about safety inspectors banning ladders or games of conkers and firms being put out of business because of health and safety regulations. In reality most of these stories or either untrue, distortions, or where regulations have been wrongly interpreted.

Although both the TUC and HSE have put considerable effort into trying to challenge some of these perceptions, these stories continue to be peddled by the press, often more as a form of entertainment than anything else. It is not helped when politicians and decision-makers repeat these stories without checking the source.

The long term effect of these myths being circulated is that the 'brand' of health and safety gets diminished. People see 'health and safety' as stupid rules and barriers, rather than a framework for protecting those most vulnerable in society. In fact very few of the stories are anything to do with occupational health and safety but are about public risk. They relate to what people do in their own leisure time rather than the workplace.

The TUC does believe that there is a case for looking at the issue of public safety. The wide-ranging coverage of Section 3 of the HSWA, which applies to the duties of employers to persons other than their employees, is problematic. While it is quite right that employers should owe a duty to the public from their activities, this section has led to some confusion as to the role of the HSE/C in issues of public safety. This is particularly the case in respect of areas where the risk is secondary to the work-relatedness of the activity, such as hospital-acquired infections, deaths in residential homes etc. We believe that public safety issues and public health issues are important, but, unless they relate primarily to the process of work, should be dealt with separately from work-related health and safety matters.

Compensation issues

It is common to hear stories of the 'Compensation Culture' or claims that Britain is becoming 'Risk Averse' as a result of people claiming compensation. The truth is very different. The number of civil claims for compensation against employers as a result of accidents has fallen over the last 10 years. In fact, according to a recent report by the Better Regulation Task Force, despite the introduction of 'no win - no fee' claims, the total cost of compensation cases in Britain has remained, in real terms, static since 1989.

Britain pays out much less on civil compensation, as a proportion of its GDP, than any other major European country apart from Denmark, and a third that of the USA.

Rather than having a compensation culture, most workers do not claim anything when injured. Each year over 850,000 people are injured or made ill as a result of their job. The most common injuries are musculoskeletal disorders such as back injury or RSI, injuries from slips and falls, skin diseases, and deafness. Many people will get better, some will not. Over 25,000 people are forced to give up work every year as a result of work-related injuries or illness. However the number who gain compensation from their employer is, according to the Association of British Insurers, around 60,000 a year. A further 20,000 will make a successful claim for industrial injuries benefit, which is a government funded 'no fault' scheme. This means that 9 out of every 10 workers who are injured or made ill through work get no compensation.

Nor are there large numbers of spurious claims. The Compensation Recovery Unit indicates that around 1% of claims registered with it result in no settlement.

Even when a settlement is made, compensation payments are often quite low. Exact figures are difficult to come by because in excess of 95% of cases are settled out of court. Figures from the leading solicitors companies give an average settlement of around £7,500. However, because there are a small number of large payments, the vast majority of claimants receive less than £5,000. Payments are made based on decided cases and independent medical evidence compensating actual loss and even where there is a debilitating and life destroying disease the compensation is never more than those guidelines. An example is mesothelioma caused by asbestos exposure. This is invariably fatal. The guidelines for pain and suffering are £45,000 - £70,000, however if the case is settled after death, the payment is often lower, with a standard tariff for bereavement damages of £10,000.

The press does report cases of workers getting £100,000 for 'stress' or 'asthma'. These cases, which are very rare, are relatively young workers who, because of their employers admitted or proven negligence, will no longer be able to work again in their chosen profession as a result of their illness. This level simply reflects the loss in their income over their remaining working life. Is this really going to make up for someone's health being totally ruined because their employer failed to provide a safe workplace?

Unions do support members in taking claims and make no apology for that. Although most of our effort goes into prevention, we do believe that, if a member is injured through the negligence of their employer, and suffers financial loss, then their union should advise them of their rights if requested. Unions offer high quality legal services that are tailored for speedy resolutions of claims. At the same time, unlike a High Street law firm or a claims company, the lawyers will work with the union to try and ensure that the employer takes action so that the cause of the illness or injury is not repeated. For this reason there is a strong link between compensation claims and prevention.

We do however share the concerns of others about some of the abuses of a number of claims management companies who promote their services through television or within hospitals. This sector is already regulated and claims management companies must comply with the requirements of the Compensation Act, however we do believe more could be done to stop the 'ambulance chasing' that does appear to, on occasion, be occurring.

We also share the Government's desire to ensure that costs are reduced to as low a level as possible while continuing to secure justice. We are keen to work with other stakeholders such as insurers, the MoJ and employers to reduce frictional costs and speed up the process if that provides better access to justice. That means ensuring that standards, service delivery and lawyer access are either maintained or improved.

A new claims process has just been introduced to deal with Road Traffic Accident cases. We believe that these may help reduce costs in this field, and, as RTA claims make up around 70% of the total number of PI claims this could help reduce costs. However RTA cases are not comparable to Employers Liability Personal Injury claims as, in the former, both parties are usually insured. PI claims are also usually more complex.

The TUC has, in the past, made a number of proposals on how the current system of Employers Liability claims can be either improved or made more effective.

There is a lot of frustration that the new procedures introduced following the Woolf reforms have not had the expected impact. There is major concern among both unions and lawyers that courts are not using their enforcement powers, in particular over timescales, and this has meant the expected reductions in costs and savings in time have not been seen. The TUC recommends that your review should investigate the extent to which the existing protocols are not being adhered to and the reasons for that.

The earlier the potential defendants, or insurers, admit liability, the lower the costs, and, hopefully, the quicker a settlement. Early admission is therefore in everyone's interests.

Although procedures are already there to help the insurers consider a claim and make a decision on liability before court proceedings can begin, these protocols front-load cost. We were supportive of consideration being given to whether or not a short period of time could be given to insurers to respond to admit liability, prior to the pre action protocol being used and before any costs be incurred.

Conclusions and summary

• The TUC believes that there is a strong need for greater investment in health and safety. As we come out of the recession injury rates may rise. We also need to tackle the ill-health epidemic that costs the country billions of pounds a year through sickness absence. All this is avoidable, but will require both resources and commitment from the top.

• We want to see our political leaders acting as champions for occupational health and safety. There is both a strong business and moral case for ensuring that employers take their responsibilities seriously. There should also be more recognition and support for the role that trade union safety representatives make.

• The Government should act as an exemplar, both as an employer and also as a commissioner of services, including when commissioning construction projects.

• We also need a strong regulatory framework, but one this is simple and effectively and proportionately enforced. The TUC is a strong believer in good regulation, but regulation on its own will achieve nothing unless it is enforced. The need to comply with good regulation should not be seen as a burden, but a responsibility.

• Regulation is there to protect those who need protection. It should be judged on its effectiveness on doing that. In the case of health and safety the regulatory framework clearly has made a difference in the safety field but much more needs to be done to tackle the health issues.

• We do not believe that there can be any case for exempting any employer from their responsibilities to protect their workforce, nor should any employee groups be removed from the protection the law gives.

• Where workers are injured or made ill as a result of negligence they should be entitled to compensation. Although most workers do not claim compensation, and there is absolutely no evidence of any 'compensation culture' in the employers liability field we would welcome discussions on what steps could be taken to speed up claims and thereby reduce costs.

• Finally the TUC believes that the HSE is a world-class organisation whose staff provide an invaluable service that is second to none. Its work has ensured that Britain's sickness absence and death rate is much lower than it would otherwise be. Their publications, guidance and research have led the way internationally and we would strongly argue for an enhanced role for the organisation.