Independent review of health and safety legislation - call for evidence
The TUC welcomes the opportunity to give evidence to the Independent Review of Health and Safety Legislation.
The TUC is the main UK organisation representing working people and has 55 affiliated trade unions with a combined membership of over 6 million members.
Before responding to the specific questions in the call for evidence it is important to put the review into context.
The regulation-setting process in the UK has been built on consensus between employers and employees. That means that, where a new regulation is recommended to ministers, it has the support of all sides of industry.
The TUC does not support regulation for the sake of it. We believe that, to be effective it must be simple, clear and proportionate. Unnecessary regulation is of no help to anyone, including safety representatives. That is why we have consistently worked with the HSE to reduce complex or ineffectual regulations, while, at the same time maintaining or improving worker protection.
As a result, a considerable number of regulations have been removed or simplified, with the support of both trade unions and employer's organisations. It has however been driven by a desire to ensure that we have a regulatory framework that meets the needs of employers and employees.
What we now see is a review of regulation which is being driven by ideology rather than any wish to improve its effectiveness. That will destroy the consensus that has existed around regulation on health and safety for the past 37 years.
One of the reasons why there is growing criticism of regulation on health and safety is that in recent years we have seen claims that the workplace is a much safer place than it was. It is wrongly suggested that most workers are at little risk, and that as a result, much of the regulation that we have is unnecessary. It is this perception that has, in part, led to a growing tendency to claim that health and safety laws is more applicable to industries like factories and mines, rather than offices, shops and schools and therefore regulations, or enforcement, should to be reduced.
This view of health and safety has been fed by the numerous stories in the media ridiculing 'elf and safety gone mad'. Some of these stories have an element of truth, others are distortions, while a few are just downright lies. Most relate to public safety, such as village fetes, playgrounds or the activities of local councils. Very few are anything to do with health and safety in the workplace.
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 as a framework for protecting those most vulnerable in society. This has a knock-on effect in the workplace where health and safety is seen as less of a priority.
There is however no evidence that there is a problem with over-regulation. The opposite is in fact the case. Many of those who have looked at the issue in recent years, including the BCC and Lord Young, have accepted that the problem is largely one of perception. If that is the case then the role of government should be to try to challenge the incorrect perception rather than make policy based on it.
It is also important to recognise the difference between workplace health and safety and the decisions on risk that we take in our own homes or our free time. Where a person does DIY or goes climbing a mountain they can make decisions about how it is done, the equipment they use, and whether they have the correct skills. In the workplace it is the employer who decides how a job is done and what training and equipment is necessary. Because workers do not have that control over the working environment a legal framework is necessary to ensure that they are not forced to take risks with their own or others safety and health.
The state of occupational health and safety in GB
It is claimed that the British workplace is a relatively safe place, as the number of fatalities is low. In 2010/11 that number was 171.
That figure is very misleading and represents far less than even 1 per cent of the number of people whose life has been cut short as a result of their work.
Between 8,000 and 15,000 deaths are caused each year by occupational cancers. In addition there are around 4,000 deaths from other lung disorders such as chronic bronchitis and emphysema caused by breathing in fumes, chemicals and dusts. More than 1,000 people are killed while driving on the roads as part of their work. There are also all those who die as a result of cardiovascular disease caused by the nature of their work. This can either be stress (which can more than double your risk), or exposure to certain fumes and chemicals. The lowest estimates for this are 7,500.
Using the most conservative estimates at least 20,000 people die prematurely every year because of occupational injury or disease, but the real figure could be nearer twice that.
The death toll that work takes is only a part of the picture. Last year 28,692 major injuries to workers were reported, with a further 105,222 workers receiving an injury that meant they had to take at least three days off work. However, almost one in every two injuries is never reported by the employer, so the HSE estimate that the number of injuries that should have been reported last year would be 246,000.
This is the number of cases where there was an actual injury in the workplace that led to at least three days off work. It does not include injuries that develop over time or diseases that people get as a result of their work. The HSE estimates that there were 551,000 new cases of illness caused by work last year. While many of these illnesses will go away quickly, many others become long-term and can remain with the person all their life.
In total, 2,100,000 people say they suffered from ill-health that they thought was work-related.
Even with these high levels of ill-health, 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. We certainly have fewer fatal injuries. These have fallen by around 80 per cent in less than 40 years. In part that is because many of the most dangerous industries such as shipbuilding, mining and heavy engineering have declined dramatically in the same period. We have also seen increased mechanisation. Another factor is the development of a better, simpler, legal framework since 1974. Injuries have also fallen, although not as dramatically. We have not however seen the same decline in diseases.
Because we have moved away from an economy where the majority of the working population were employed in manufacturing, to one where most work in either the public or service sectors, it is impossible to make meaningful comparisons between the health risks 50 years ago to the situation today beyond saying that it has changed dramatically. Now we have different things to worry about.
It is however important to recognise that the health problems that 2.1 million people are experiencing because of their work are just as real and affect people just as badly as the health problems of previous generations, and they are just as preventable.
Low risk workplaces?
The TUC would also reject the suggestion that offices, shops, schools and SMEs are 'low risk', and HSE statistics would support our view. For instance, the group categorised as 'Public Administration', which is made up almost exclusively of office workers, actually has one of the highest rates of over three-day injury, although it does have fewer fatal and very serious injuries. Both stress-related illnesses and RSI are more common in offices and between them they account for over 70 per cent of all work-related illness. Unfortunately there is still a view that these illnesses are less worthy of sympathy or action than injuries caused by 'accidents'.
The sectors with the highest rates of fatalities are all ones where there is a large proportion of small enterprises or self-employed people - in particular construction, transport and agriculture. In the case of agriculture, the death rate in 2009/10 was 16 times the average, while, in construction, the rate was 4 times the average. These are also among the sectors with the highest non-fatal injury rates.
However there are many other sectors where there are a large number of SMEs and also an increased risk of injury. Restaurants, often small or family-run businesses, have higher rates of slips and trips as well as increased risk of injury from electricity and fire, while shops, also often small employers, have higher levels of injury through violence.
Many small employers also have higher illness rates. Mesothelioma is highest among maintenance workers, who are more likely to work for a small employer or be self-employed. Hairdressers have among the highest rates of dermatitis, small bakeries have much higher rates of asthma, schools (also often small employers) have much higher than average levels of stress-related illnesses, while the music sector has high rates of occupational deafness.
What this shows is that it is erroneous to claim that one type of workplace or sector is always going to be safer. Every workplace has its own risks and, by concentrating on immediate fatalities or traditional risks, and ignoring the dangers of diseases that develop over a long term, we may have contributed to the rise of the current occupational health epidemic, with 2,100,000 people suffering unnecessarily from ill-health caused by work.
The importance of regulation and enforcement
The effect of the Health and Safety at Work Act, the European Framework Directive, and the regulations made under them has been positive. There has been a big decrease in fatalities, and a reduction in injuries. In part that is due to structural changes in the workplace and developments in technology, however a significant part is due to regulation and its enforcement.
The decline in injuries has however reached a plateau, and the TUC would contend that this is, in part a result of a fall in enforcement activity. The number of prosecutions has fallen from 1,986 in 2001/2 to 1,090 in 2008/09. There has been a similar fall in local authority 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.
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. Unfortunately, even when a prosecution is successful, it does not necessarily lead to justice. 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.
Although evidence on the relationship between regulation and rates of injury and disease can be difficult to analyse the HSE did conduct some research in 2001 which showed that 'The evidence in this review suggests that the key to improving occupational health and safety is to ensure maximum compliance with health and safety legislation in terms of implementation of effective control measures both in theory and in practice. The evidence further shows that compliance with the law is generally a bigger motivator for employers than achieving business benefits.'
This is borne out in other studies. Some examples include:
In the USA a study by the Federal enforcement agency OHSA showed that inspections that imposed penalties produced a 22% decline in injuries during the following weeks. A follow up found a 22.5% fall in accident rates for employers who had received enforcement action against 7% for those who had simply had advice and information.
In the state of Oregon there was a threefold increase in penalties along with increased enforcement action. Compensation claims fell by 30% and fatalities by 21% in a five year period even though employment rose by 10%
In Bulgaria, regular inspections and penalties led to a doubling of the number of employers adopting programmes to eliminate workplace risks between 2003 and 2004.
Within the UK, researchers at Imperial College have developed a mathematical model to ascertain the effects of the levels set in regulation, and their enforcement on lung cancer numbers. In the case of silica halving the maximum exposure rate would reduce the number of cancers by 202, however the researchers also showed that regulation alone is only of limited value. Were the limit to be reduced and enforcement increased so that 90% of workplaces complied, the number of cancers prevented would be a staggering 745 over the period looked at.
There is also wide support for regulation. Nearly two-thirds of people in Britain agree they benefit from regulation in their everyday lives and 70 per cent think the benefits of regulation outweigh the burdens, according to a recent report from the Department for Business (BIS). (Better regulation, better benefits: Getting the balance right). Research for the report found '70-85 per cent agreed 'overall the benefits outweigh the burdens' for environmental standards on air/water, food hygiene, health and safety and smokefree law.
The report adds: 'Regulations add value where they change behaviour. Changing behaviour means ensuring that organisations or individuals comply with these regulations. Academic experts agree that compliance cannot be predicted just by reading rules, but is strongly affected by the motivations of regulated businesses and the approaches to offering support to comply and to enforce them.'
This links to the commonly stated view that it is a complicated regulatory framework that leads to reduced compliance. The TUC is unaware of any evidence to back this up. Evidence has shown that around a half of SMEs do not comply with the requirement to do a suitable risk assessment, yet this requirement is relatively straightforward for most SMEs and both advice and pro-forma assessments are readily available. Instead we would contend that, from the reports that we receive from representatives in workplaces there is a relationship between those employers who ignore or deliberately disobey health and safety regulation and those who ignore or disobey regulations in other areas such as employment law, financial requirements and the environment.
Very simple advice on implementing health and safety is available for businesses and the TUC believes it is excellent. Yet a large number of employers across a range of sectors choose to ignore the law. This would imply that the problem is cultural rather than a result of the regulatory framework, and therefore the best response would be to increase enforcement activity.
The effect on business
There appears to be a misconception that increased regulation reduces competitiveness and productivity. In fact there is no evidence for this at all.
Those countries that are most successful within Europe are those with higher levels of worker protection and greater enforcement. This may be because improved security and safety at work leads to increased productivity and lower sickness rates.
This is supported by the findings of a recent study by Deakin and Sarkar, which examined the relationship between movements in indexes of labour regulation for four countries - Germany, France, the UK and the United States - and trends in productivity, employment and GDP growth over the period 1970-2006.In the case of the UK, this study found there was no significant relationship between this index and the productivity growth rate, while for Germany a positive relationship was identified.
Nor can the current levels of regulation in the UK be considered any type of '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 of Health and Safety at Work Regulations 1999 (mainly the risk assessment requirements). 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.
It is also a myth that there has been an increase in the number or complexity of regulations. The reverse is true as there has been a significant fall. We now have 46 per cent fewer regulations than in 1974 when the Health and Safety at Work Act came into effect. This process of simplification and consolidation is still going on and there are 37 per cent fewer health and safety regulations now than just 15 years ago.
It is not just the number of regulations that have declined, it is also the bureaucracy. Over the last four years the HSE has reduced the number of forms used for collecting information from business from 127 to 54, a 57.5 per cent reduction.This has been done with the support of employers, unions and safety professionals, but the driving force has been a belief that regulation should be simple and effective.
Nor are businesses 'over-inspected'. It is estimated that the actual number of inspectors in The HSE FOD division (the section that deals with all sectors except specialist sectors such as nuclear, off-shore and chemicals) is around 700 to cover a total of 884,000 premises. There are another 1,110 (full time equivalent) inspectors working for local authorities covering 1,108,000 premises.
In 2008/09 the number of recorded inspections made by the HSE was 23,004. On the current level of inspection 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.
Inspectors play a positive role in ensuring that employers understand and fulfil their duties, often giving advice and support to help them do so. Nearly 90 per cent of all employers who have had contact with the HSE have seen it as a 'helpful' organisation.
It is therefore of grave concern to the TUC that the responsibility placed on employers to maintain a safe workplace can be considered a 'burden'. The bottom line is that if any employer is unable to operate without risking the lives and health of their workers, they should not be in business.
Good employers have always supported both regulation and enforcement because it means that their competitors cannot take short-cuts with peoples' safety and undercut them. It is only unscrupulous or incompetent employers who fear consistent and fair regulation of health and safety.
Much has been made of the role of consultants in promoting a 'risk-averse' culture. The TUC is unaware of any evidence to support this, however it is possible that, in some cases, consultants have sought to ensure that a business uses their services by making recommendations aimed at ensuring that there is an on-going relationship, rather than to ensure compliance. This can include unnecessary checks or regular follow-up activities. These are common practices in some businesses and are not specific to health and safety consultants.
We note the setting up of a health and safety consultants register and hope that this will assist in preventing the most serious abuses but we believe that the most effective protection against unscrupulous consultants is to ensure that businesses have access to simple, clear and free advice and support aimed at allowing them to take control of their own health and safety procedures. The materials produced by the HSE for small businesses are excellent but more needs to be done to promote them and encourage their use. This would encourage businesses to develop the confidence to deal with their own risk assessments and risk control where possible. The TUC would commend the HSE website as being of an exemplar of good practice in promoting simple good practical guidance. The Infoline also played a major role in supporting SME's. We would however like to see more done to develop this area of work further.
The voluntary approach
One alternative to regulation which is often suggested is either a voluntary approach or self-regulation. The experience in public safety areas is that the voluntary approach is generally ineffective and that only a statutory duty, backed up by enforcement where necessary, will ensure compliance. Codes of practice on smoking in pubs and clubs had almost no effect and only a strict legal prohibition worked. Likewise campaigns to encourage seatbelt or crash helmet use had limited impact until legislation was introduced requiring their use.
No evidence has been presented that self-enforcement is in any way an effective alternative to enforcement in the field of health and safety and where a voluntary approach has been attempted, as it was in Ireland and the USA, it has failed. Both countries have now reversed initiatives which replaced regulation and enforcement with self-regulation.
The TUC does however support promoting good practice and sharing examples of what works. This allows employers to learn from the experience of the exemplars. Guidance should therefore include, not only what is required, but what could be done to go above the absolute minimum to promote a healthy and safe workplace. However where guidance does promote good-practice it should make it clear what is the legal requirement and what is good practice.
In addition to guidance, some regulation has an Approved Code of Practice attached to it. The TUC is aware that there is a view amongst some that ACoPs themselves serve no purpose or are another form of regulation. The TUC would disagree. ACoPs are intended to represent what employers should do in order to comply with the law, but are not prescriptive in that an employer can choose how they obey the law and therefore can choose to comply in other ways. As such they give an element of discretion and freedom to employers.
However for most employers, especially SMEs they give confidence to a duty-holder that, by following the Code of Practice they will be not face prosecution. As such they are different from guidance which can represent good practice. In a safety system based on risk assessment and where much of the regulations are goal-setting rather than prescriptive ACoPs are important and reflect the approach taken by Robins. The TUC does however agree that guidance on what circumstances would warrant an ACoP as opposed to guidance would be useful.
We also support other ways of incentivising good behaviour and believe that insurers could do more to encourage good practice by rewarding those with effective systems in place and ensuring that all those insured have adequate risk assessments.
The Governments regulatory agenda
The current government has said that it will not introduce any new regulations on health and safety unless other regulations are removed (one in one out). This is not 'good regulation'. The regulatory agenda should not 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.
They have also indicated that, when introducing new regulation, or reviewing existing regulation which has its origins in Europe, no 'gold-plating' should be introduced. The definition of gold-plating laid out in the BIS document 'Transposition Guidance:
How to implement European Directives effectively' is extremely wide ranging and includes retaining pre-existing UK standards where they are higher than those required by the Directive.
The TUC believes that this means that existing levels of protection will be reduced simply to ensure that the UK is at the bottom of the regulatory heap. European Directives are intended to provide a minimum standard below which no country can fall. Not to replace existing standards, or to remove the ability of national regulators and legislators to set those standards they feel are appropriate.
The Government's approach removes the 'common-sense' approach that regulation should be introduced where it is required to prevent death, injury or illness and where the benefits to health outweigh the cost to society, to one that sees regulation simply in terms of the cost to business.
The government is also seeking to reduce the level of enforcement of regulation. It has instructed the HSE to reduce the level of proactive inspections by a third and announced that a considerable number of businesses will not be inspected proactively at all.
There is also a clear link between prosecution activity and preventing injury and ill-health. If employers know that there is very little chance of them being inspected, they will be far less likely to ensure they are complying with the regulations on health and safety.
The government's approach also sees inspections as being a negative thing. This is not the view of the TUC, or necessarily of employers. Nearly 90 per cent of all employers who have had contact with the HSE have seen it as a 'helpful' organisation.
A recent TUC survey of safety representatives provides further evidence of this. The results suggest that the 61% of employers have made an attempt to make improvements to health and safety ('a little', 'somewhat' or 'a lot') because of the possibility of an inspection.
TUC Response to the specific questions posed
In respect of the specific questions the TUC would wish to respond as follows, however these replies should be read in the context of the preceding comments.
Question 1: Are there any particular health and safety regulations (or ACoPs) that have significantly improved health and safety and should not be changed?
In broad terms the regulatory regime has been very effective in dealing with fatalities and injuries caused by work. Although there is a scarcity of peer-reviewed evidence that can state with certainty what the relationship is to any piece of health and safety regulation and its impact in isolation from any other factors, it has been suggested that, of the 80% decrease in fatalities achieved since 1974, around half is due to structural changes in the workplace and changes to technology, while around half is a result of health and safety legislation and enforcement.
We would commend to the review the HSE Contract Research Report 385/2001 'The impact of the HSC/E: A review'. This looked at the effectiveness of legislation on health and safety and found that 'Legislation and associated guidance is a major form of leverage over employers in terms of bringing about change in their health and safety policies and practices. Most employers are motivated to change their practices to comply with the law.'
In addition the European Commission published a report on the implementation of the 1989 Framework Directive and 5 individual directives in 2004. This report outlined the structural changes that had taken place and indicated that health and safety measures in the workplace are reported to have widely contributed towards improved working conditions, boosting productivity, competitiveness and employment. It showed there had been a considerable improvement in terms of health and safety protection and stated that the implementation and application of the EU legislation played a crucial role in bringing down the figures.
Areas that are particularly striking in terms of change are machine safety, construction and chemical regulation, in addition the regulations in some specific sectors such as nuclear, asbestos, and off-shore are deemed to have been effective. The TUC would also suggest that the DSE regulations and manual handling regulations probably made a considerable impact, in that the levels of MSDs in the workplace would probably have been much greater had they not been in place, particularly given the major changes in working practices that took place during the past 30 years. The regulations also helped to change working practices and stimulating the design of safer solutions to handling activities. There are now a wide variety of mechanical handling devices on the market which have only been developed because of the Regulations. In a similar way there are new systems and equipment being developed to reduce risky work at height as a result of the regulations covering that work.
However one of the most significant pieces of regulation is the Safety Representatives and Safety Committees Regulations. There TUC has produced a detailed report on the significant effect that Trade Union Safety Representatives make to the workplace (The Union Effect). Among the peer reviewed research referenced in the report are an analysis that found that those employers who had trade union health and safety committees had half the injury rate of those employers who managed safety without unions or joint arrangements.
Several other analysis of the same figures have all concluded that the arrangements that lead to the highest injury rates are where management deals with Occupational Health and Safety without consultation . In 2007 the same authors once again found lower injury rates in workplaces with trade union representation the effects were deemed to be significant, by contrast the effect of management alone deciding on health and safety was not significant.
A study of 1998 figures also confirmed that 'unions gravitate towards accident prone workplaces and react by reducing injury rates'. This study showed that where there is a union presence the workplace injury rate is 24% lower than where there is no union presence. More recently a study of manual workers published in 2008 confirmed that workers in unionised workplaces were less likely to have a fatal injury.
But it is not only injuries that trade unions help reduce. It is also ill-health. Another study in 2000 found that 'The proportion of employees who are trade union members has a positive and significant association on both injury and illness rates.' It went on to say that 'the arrangements associated with trade unions...lower the odds of injury and illness when compared with arrangements that merely inform employees of OHS issues'.
In January 2007 the DTI (now BIS) published a report which concluded that safety representatives at 2004 prices save society between £181m and £578m each year as a result of lost time reduction from occupational injuries and work-related illnesses of between 286,000 and 616,000 days.
Question 2: Are there any particular health and safety regulations (or ACoPs) which need to be simplified?
The HSE has been very successful in seeking to simplify legislation while retaining levels of protection. The TUC has supported this, and there has been broad consensus on this. It led to simpler, improved regulations on areas like asbestos and construction. Generally the simplification happened when the regulations were being reviewed as a result of a further European Directive, but others were looked at during the process of the simplification exercise.
There are some issues where a regulation or ACOP is unhelpfully unclear and as such employers have difficulty knowing exactly what they must do to obey the law. An example is in the Welfare Regulations where giving a simple figure for the maximum workplace temperature would greatly improve the situation.
There are a number of ACOPs which need updating to take into account of changes to regulation since they were agreed. An example is the ACOP on safety data sheets (L130). The general advice it contains however is still pertinent.
Question 3: Are there any particular health and safety regulations (or ACoPs) which it would be helpful to merge together and why?
We TUC believes that the opportunity to consolidate regulations should always be looked at when further regulation is developed, either as a result of domestic requirements or because of new European regulation.
The TUC has welcomed the merger of regulations where they cover the same or similar area, as it is easier for enforcers, employers, safety professionals and safety representatives. This has already been done in the case of asbestos and construction.
The TUC did recommend that the chemicals regulations should also be reviewed and brought together when REACH was implemented but that was deemed not to be possible by the HSE.
There are also some sectors that have a number of inter-related regulations that could possibly be consolidated. An example is domestic gas and in the event of changes being required to the existing gas regulations, the opportunity could be taken to review the possibility of consolidating some of those.
We do not however support merger for the sake of it as every time new regulations are made it requires employers to revise their procedures, and can cause confusion.
Question 4: Are there any particular health and safety regulations (or ACoPs) that could be abolished without any negative effect on the health and safety of individuals?
As indicated earlier, there has been a 46 per cent reduction in regulations since 1974 when the Health and Safety at Work Act came into effect. Most of that has been in the last 15 years. As part of its simplification exercise the HSE has examined most of the current regulation and assessed that it still has a requirement.
The TUC is unaware of any current regulations that serve no purpose, but has always been willing to consider any evidence that a regulation is no longer required and could be removed without any negative impact on worker or public safety.
Question 5: Are there any particular health and safety regulations that have created significant additional burdens on business but that have had limited impact on health or safety?
Prior to regulation being introduced there is an impact assessment which ensures that the effect of the regulation is, overall, beneficial and that the benefits outweigh the costs.
The TUC has often criticised these assessments in that they give insufficient weight to the effect that the regulation has on reducing occupational injury or ill-health. It is therefore highly unlikely that any recent regulation could possibly have been introduced where there would be disproportionate cost. We are unaware of any older regulations which do so.
Question 6: To what extent does the concept of 'reasonably practicable' help manage the burden of health and safety regulation?
Because the UK legal system does not have the equivalent of force majeure/ casus fortuitus which exists in most European legal systems, some form of defence where something is completely outside the persons control is a reasonable part of the criminal health and safety system. Trade unions have not opposed the principle behind reasonably practicable and, when the European Commission looked at whether the UK was in compliance with the provisions of the 1989 Framework Directive the TUC defended the UK government's position.
Courts have been quite clear in their interpretation and have stated that a relatively high bar exists if an employer wishes to use this defence. Simply using cost factors is not sufficient. As such it provides a practical way for health and safety regulations to be applied in a sensible and proportionate way while at the same time maintaining the safety of workers and the public.
We are however concerned that 'reasonably practicable' is often misinterpreted by employers and safety professionals as meaning 'affordable' and perhaps more needs to be done to ensure that employers, and others are aware of the significance of 'reasonably practical' so they do not erroneously believe that it reduces their legal obligations.
Question 7: Are there any examples where health and safety regulations have led to unreasonable outcomes, or to inappropriate litigation and compensation?
We would be quite willing to give a considerable number of examples of where a lack of health and safety regulations (or their enforcement) have led to unreasonable outcomes. These range from the Stockline tragedy to the 4,000 people dying every year as a result of exposure to asbestos because of the lack of adequate regulation in the past.
However we are unable to give any examples of where someone has been killed or injured by an excess of regulation, or of any case where an employer has been unreasonably prosecuted.
It is however true that if a regulation is impractical then duty holders will find a way round it or ignore it. One example given in the past is the restrictions of some domestic gas regulations, such as those on flues. This means that in tenement blocks householders are unable to replace an existing boiler and so retain older inefficient and unsafe boilers, or have them replaced illegally.
We are surprised that the panel are looking at the relationship between regulation and compensation as health and safety is governed by criminal law and compensation by civil, where the balance of proof is different, or by the no-fault industrial injuries scheme. Although a breach of regulations is a prima-face evidence of negligence, it is not required, and a breach of regulation does not automatically mean that this resulted in injury. The claimant must simply prove that they had an injury, disease or loss and that this was a result of their employers negligence.
Question 8: Are there any lessons that can be learned from the way other EU countries have approached the regulation of health and safety, in terms of (a) their overall approach and (b) regulating for particular risks or hazards?
All EU countries now use risk assessment as the way of removing or reducing hazards and controlling risk. In practice there are considerable variations in the way these are enforced however those countries that appear to have the lowest levels of occupational injury are those with the highest levels of inspection and worker involvement. In northern Europe where worker involvement through trade unions is higher, there are lower levels of injury. These are also the countries that are more likely to have regulation which exceeds the European minimum. In southern Europe, trade unions report that there is lower enforcement and compliance, and as a result they have higher injury and occupational disease numbers. This appears to be borne out by the European injury and occupational illness statistics published by Eurostat.
We would however particularly commend the Swedish model of supporting workers and employers through Roving Safety Representatives, who work with trade unions in going round small businesses ensuring that they have good health and safety systems and providing help where required. A similar one year pilot in the UK also proved very successful.
Question 9: Can you provide evidence that the requirements of EU Directives have or have not been unnecessarily enhanced ('gold-plated') when incorporated into UK health and safety regulation?
The Review Team should not duplicate the work that has already been done by the Davidson review in 2006 which concluded that 'properly assessing whether a particular piece of European legislation has in fact been over-implemented and whether that over-implementation is justified is not straightforward. The assessment requires careful research into the legislation and the policy reasons behind the UK's implementation, as well as consideration of how the legislation is being enforced in practice and the impacts it has on those being regulated.'
EU Directives are intended to provide a ceiling below which no EU member state can fall. This is to prevent any country seeking to get an unfair advantage within the internal market. They are not intended to become the European norm, nor to remove the ability of member states to legislate. No European country has yet handed over the right to make employment or health and safety law to the EU.
Often legislation has arisen as a response to a specific situation in the UK. Regulations on gas and oil extraction came after the Piper Alpha disaster because it was clear there was a need for regulation. Increased regulation of chemicals followed Flixborough, and on LPG pipes after Stockline.
Britain has a good record of implementing European Directives proportionately in a way that assists employers, enforcers and workers. Unlike a small number of European countries that implement directives alongside national laws, Britain incorporates them into the existing framework of regulation. This makes them more practical and easier to understand. It has allowed the HSE to ensure that, when a new directive is implemented it reviews the existing framework and consolidates the current regulation with the directive. Often this has meant simpler, and fewer, regulations as happened with the construction and asbestos regulations.
Simply adopting European regulations verbatim would be impractical (given the different legal framework in the UK and the fact that the regulations must be consistent with the Health and Safety at Work Act.) and would remove the ability of the UK government to have any control over domestic legislation which emanated from Europe. It would also mean that there would be several regulations covering a specific subject. It would not be possible simply to repeal UK legislation because it often covers a wider area that the UK regulation, and also it would mean removing existing protection which had been deemed necessary at the time.
An example of why the UK approach is necessary is illustrated by the draft Directive on Musculoskeletal Disorders, which are responsible for over a third of all work-related sickness absence. The UK has several regulations covering this area, but which are wider than just MSDs, for example the VDU regulations, which were written before the advent of laptops and hand-held devices. Once the EU Directive is agreed, it is important that the HSE goes through the process of reviewing all these regulations, consolidates them and has one simple directive on MSDs that employers, unions and enforcers can understand.
What has been seen as 'gold-plating' usually is a result of the practical approach that the HSE has taken to regulation, which is that it should not remove or reduce existing protection and, if there is a strong safety case, should regulate specifically for the UK.
One example is that British safety law covers the self-employed although they are not specifically covered by the 1989 Framework Directive. That is because the Health and Safety at Work Act covers the effect that work activities can have on the public, not just employees. This is an extremely sensible approach and other countries have similar regulations but they may be included in public protection rather than health and safety regulation. The effect is however the same. The UK approach recognises that, although the working relationship of the self-employed can be different from that of the employed, their work activities can pose a risk to employees they are working alongside, or the public. This is sensible and to exempt the self-employed from regulations such as the asbestos regulations would put the public at considerable risk (as well as the individuals themselves). In addition, many self-employed people work in situations where they have no control over their working environment and so require the same protection as workers.
The TUC would also countenance against the use of the words 'gold-plating' which implies that somehow the UK is going well above the standards in other countries for no reason. This is not the case and the idea that there is any type of 'over-regulation' or 'additional burdens' being placed on business by the HSE is not borne out by the evidence. There have been several cases where the UK has been investigated for under-compliance, and only this year the EU warned the UK Government that the current asbestos regulations did not meet the level of the European Directive. At the time the regulations were implemented the TUC expressed grave concern that the regulations did not meet the requirements of the Directive, and called on the government to revise the regulations.
On some occasions however the TUC has taken a pragmatic approach and accepted that the HSE's lower interpretation of an EU directive is more appropriate for the UK situation. An example is the regulations on construction, where the HSE (with support from all sides of industry) accepted that the requirements relating to private householders were not proportionate or enforceable and they were omitted from the UK regulations.
The TUC believes that there is still a range of other areas where Britain is in breach of its regulatory requirements. These include the requirement to provide occupational health support, support for involvement in standard setting for machine safety and the right of safety representatives to be involved in inspections by fire authorities. It also exempts small employers from the written risk assessment requirements.
The debate on 'gold-plating' is in danger of getting in the way of the real issue which is how we can use EU Directives to ensure that UK regulation is simple effective and proportionate, and most importantly, helps reduce injury and illness.
Question 10: Does health and safety law suitably place responsibility in an appropriate way on those that create risk? If not what changes would be required?
The Health and Safety at Work Act is an extremely good piece of legislation that aims to put, simply and clearly, responsibility for risk on to those who create risk. This is primarily the employer, but can include manufacturers, suppliers and designers. It places a positive duty on them to ensure the safety of workers and the public. In addition it places a duty on employees to take care of their safety and that of others and to cooperate with their employers.
These responsibilities reflect the situation in the workplace where it is the employer who controls the working environment and so has responsible for ensuring that risk is removed or reduced, but recognises that there are times when control lies elsewhere (such as with product design). It also recognises that the employee operates under the instructions of the employer and that it is the employer, not the worker who has control over the workplace. Therefore the employee has duties, but should not be responsible if an incident happens because they have not been given the right equipment or been properly trained or supervised.
The only omission from the regulations in relation to responsibility relates to the lack of accountability and responsibility for those at the top of organisations. While many company directors do take their responsibilities for health and safety seriously, many do not. Although they are covered by Section 37 of the Act, they do not have a positive duty in the same way that employers, managers and suppliers do. Until there is a statutory duty on them to do so then this will remain a major loophole.
Those who set the strategic direction of an organisation, who allocate resources and who oversee operations, often have no awareness of the health and safety implications of their decisions. They can make decisions on resources, or on staffing, without considering what that may mean to the health or lives of those that they employ. This can have serious implications, as the report into the management of BP after the Texas City disaster in 2005 showed.
It is clear that the voluntary approach has failed to ensure that directors in all organisations, public and private, take responsibility for the health and safety of the staff they employ. Even if it has led to some boards of directors receiving regular reports on health and safety, or appointing a 'champion' at board level, there is still nothing that can be done about those companies that do not. These are companies where the only concern of the board members is the bottom line. It is because of these organisations that there is a need for a specific legal duty on directors.
Directors of companies who are already complying with good practice will have nothing to fear from such a duty. It is only those who think they can continue to get away with ignoring the call for corporate responsibility that would be at risk if they continue to run organisations that put the lives of their workers, or the public, at risk.
The TUC is a strong supporter of regulation to protect workers, but recognises the need for it to be simple and practical. It does not support regulation for the sake of it, and has worked closely with the HSE on its simplification programme because that was a genuine attempt to ensure that the regulatory regime was effective.
It does not believe however that regulation imposes any kind of burden on business. It is a responsibility, just as paying taxes is a responsibility, and no business should be able to operate unless it can do so safety.
Regulation needs enforcement to be effective and the current level of enforcement activity is clearly inadequate.
The TUC has concerns over the government's approach to regulation which prevents regulators framing regulations in a way that will maximise their effectiveness, and gets in the way of using any new European directives to consolidate and build on current legislation.
The Review should confirm that health and safety regulation should be developed by an independent HSE, making recommendations to the Government on regulations. This will ensure that regulations will have the support of all sides of industry and continue to be effective and simple.
The TUC will strongly oppose any attempt to reduce the level of protection at a time when over 20,000 people are killed every year as a result of work and 2.1 million are suffering from an injury or illness caused or made worse by work.
Issued: 22 July, 2011