180 years of factory inspectors
In 1833, the first four factory inspectors were appointed. Their position was unique, in that they had powers of entry into premises and could enforce the law through court action, although they had to wait until 1844 to be legally permitted to inspect machinery guarding. In this article, we contrast the early inspectors’ experiences with the challenges facing the HSE today.
The Health and Safety Executive (HSE) publication, Her Majesty’s Inspectors of Factories 1833–1983: Essays to Commemorate 150 Years of Health and Safety Inspection by the Health and Safety Executive, states that: “Throughout its 150 years the Inspectorate has had these four overlapping roles: of law enforcement, of pressure group to improve the law, of pressure group to encourage the development of safer techniques, and of information centre.”
In commenting upon the approach taken by the original factory inspectors, the 1983 publication noted that there was an emphasis on a “policy of explanation of the law, relying on the good sense of the employer to comply with it”. Enforcement action was only resorted to in a small number of cases: “[the factory inspectors] were encouraged in this approach by the low levels of fines imposed, an almost perennial cry in their reports, and one which continues to this day”.
Indeed, 30 years later, the issue of low fines for health and safety offences is still debated, despite recent increases in penalties for such offences.
The history of the HSE
The remit and influence of the Factory Inspectorate developed over a long period of time, but it was instrumental in introducing preventative safety measures into the workplace and formulating new regulations. In the late 1960s, it was realised that the legislative base was complicated, had developed piecemeal and did not cover a significant number of workplaces; hence the publication of the Robens Report in 1972, which led to the most significant changes so far in health and safety in the workplace.
With the introduction of the Health and Safety at Work, etc Act 1974, the Health and Safety Commission (HSC) (now absorbed into the HSE) was established, along with its enforcing arm, the HSE. At this point, the Factory Inspectorate was combined with a number of government bodies to create the HSE. The HSC could propose regulations and Approved Codes of Practice (ACOPs). Part of its remit was to develop a new legal base while reforming the existing regulations.
The formal appointment of HSC commissioners from business and trade unions meant that the regulatory process could be directly influenced by employer and employee representatives. This, in turn, created a greater role for employer and trade organisations and trade unions to apply standards in the workplace. It also enhanced the HSE’s role in facilitating improvements in health and safety standards through key stakeholders, as well as its enforcement role.
General legal requirements were established for employers and employees and to protect members of the public affected by work activity. The powers of inspectors were increased so that they could issue Prohibition Notices, which stopped work until it was made safe, and Improvement Notices, requiring the improvement of preventative standards within an identified timeframe.
Since the 1974 Act, the UK has developed one of the safest workplace records in Europe. Government reviews, including the most recent, have generally concluded that the regulatory framework remains “fit for purpose”.
Professor Löfstedt’s recent review of health and safety regulation confirmed that enforcement remains a debatable issue. In March 2011, the then Employment Minister, Chris Grayling, announced that:
- Proactive inspections by HSE inspectors would be cut by 33% (11,000) per year
- Employers “who endanger public and employee safety” would have to pay the costs of investigation – this has now been implemented with the Fee for Intervention scheme
- The Occupational Safety and Health Consultant’s Register would be established to clamp down on rogue health and safety consultants
- An independent review of health and safety regulation would be initiated.
These measures were introduced as a response to the HSE’s resources being cut over the following four years and the Government view that health and safety regulation was a “burden” on UK employers. The approach of the Government appears to be: simplify advice to employers on legal requirements and they are more likely to comply with it; target resources onto the higher risk activities; and penalise those who are in breach of their legal duties. It has also put pressure on insurance companies to make explicit what their health and safety requirements are through employers’ liability insurance.
The changes mean that there are likely to be less proactive inspections and the HSE will still maintain reactive investigations. However, those in breach of health and safety law are likely to be punished financially, through the Fee for Intervention scheme.
Within the past 180 years, the issue of occupational health remains problematic. While the work of the HSE has assisted in improving safety standards, occupational health controls remain weak.
In 2011/12, 173 workers were killed at work, according to the HSE. Yet in the same year, it estimated that more than 12,000 people died from ill health associated with their work. A key issue appears to be the time lag between someone being exposed to a cancer-causing material – asbestos fibres, for example – and the onset of a disease, such as mesothelioma. Those dying of mesothelioma today could have been exposed to asbestos more than 40 years ago, when different control standards applied. How effective today’s control measures are will only be confirmed in many years’ time.
The work of the HSE
The central information role of inspectors remains significant today. The HSE is one of the most abundant providers of guidance and advice of any government body. It provides huge amounts of information on a wide range of health and safety at work issues. It also works with a large range of business, trade union and third-party stakeholders to provide information, advice and assistance in preventing occupational injuries and ill health. The current review of health and safety regulation is likely to result in more simplified and targeted information for employers and workers.
The HSE has a research budget and the Health and Safety Laboratory is a renowned research establishment. Each year the HSE publishes research reports across a variety of topics.
So the four “overlapping roles” still remain at the heart of the Inspectorate’s work. Yet, even today, the debate about how its enforcement role is applied continues, especially in view of the reduced resources available to the HSE. Inevitably, there are differing views on how this will impact on workplace health and safety standards. However, the efforts to simplify guidance for employers on how to meet their legal duties will, the Government argues, increase compliance.