The changing face of health and safety — the final report on health and safety reforms
The Government through the Department of Work and Pensions (DWP) has recently published A Final Progress Report on Implementation of Health and Safety Reforms (accessible at www.gov.uk) which summarises the actions it has taken to reform the health and safety system in Britain.
For some time, the Government — led by David Cameron — has expressed concern about the standing of health and safety in the eyes of the public and the way it operates. The Prime Minister commissioned Lord Young to report on this issue, in Common Sense, Common Safety (2010) and in March 2011 the Government’s Good Health and Safety, Good for Everyone set out our far reaching proposals to reform the health and safety system in Britain. These reforms addressed the concern that businesses were bogged down by red tape and confusion and that they often felt the need to go beyond the requirements of the law, sometimes because of advice from health and safety consultants or for fear of being sued for accidents, even when they believed that they were not at fault.
Professor Löfstedt’s Reclaiming Health and Safety for All: An Independent Review of Health and Safety Legislation (2011), which drew on the public’s views submitted via the Red Tape Challenge, found that the framework for health and safety law was broadly right, but recommended simplifying its structure and the HSE’s guidance to help business comply more easily. HSE has reduced the overall stock of legislation by 50%.
Most recently, the passage of the Deregulation Act 2015 provides the next Government with the means to exempt from health and safety law some 1.8 million self-employed jobs in low risk occupations.
What has happened and the implications
Some of the measures which have taken place are as follows.
Occupational Safety and Health Consultants Register
The Occupational Safety and Health Consultants Register (OSHCR) was launched in January 2011 and includes those health and safety consultants who are properly accredited to a health and safety professional body and have demonstrated a set standard of competence to that professional body.
OSHCR gives businesses the opportunity to select a health and safety consultant with some confidence that those on the Register have been vetted and meet standards set by professional bodies such as IOSH. Its website currently has nearly 400,000 visits each year so it appears to be a site which attracts a lot of interest. Of course if does not mean that if a consultant does not appear on the Register that they are not competent; competency is much more complicated than that. However, the Register does give help to those looking for a consultant. It should also reduce the risk of “rogue” poorly qualified consultants. Currently, there are no legal requirements for becoming a health and safety consultant or setting up a consultancy, and it is a relatively easy thing to do, so the OSHCR appears to be positive and worthwhile reform.
New health and safety inspection framework
A number of actions have taken place related to both Major Hazard Industries, including a review of COMAH and those industries regarded as non-major hazard industries. For the latter, the HSE has implemented its proactive inspection strategy. In Good Health and Safety, Good for Everyone, the Government identified three categories of non-major hazard industries:
- Sectors which present comparatively higher risk and where proactive inspection remains necessary as part of the overall regulatory approach.
- Sectors where there remains comparatively higher risk but proactive inspection is not considered a useful component of future interventions.
- Areas where proactive inspection is not justified.
Comment: In regards to the above, it is sensible to prioritise inspections based upon risk and this has always been the policy of the HSE. However, it now appears to be more about cost reduction and reducing the burden on small firms. The danger is that the deterrent effect of an impending HSE visit may be lost and that complacency will start to creep in, with a reduction in health and safety standards.
Fee for Intervention
In Good Health and Safety, Good for Everyone the Government stated its belief that it is reasonable that businesses found to be in serious breach of health and safety law — rather than the taxpayer — should bear the related costs incurred by the HSE or Local Authorities carrying out their work in relation to health and safety breaches.
In the intervening period between the introduction of Fee for Intervention (FFI) and September 2014, HSE issued invoices totalling £15,616,823. The average amount for each invoice is £520 and the average amount invoiced to particular businesses is £953. The cost recovery from FFI in 2013/14 was £8.7m.
In June 2014, an independent review panel examined FFI and its application. The panel concluded that FFI “had proven effective in achieving the overarching policy aim of shifting the cost of health and safety regulation from the public purse to those businesses that break health and safety laws.” So, FFI is here to stay.
It is difficult to argue with the case for FFI where those breaching the law pay the cost of those breaches. However, this is a financial exercise and has little to do with improving health and safety standards. Arguably it has increased the financial burden of health and safety on firms, especially SMEs, and is probably not a measure which will result in positive change in attitudes to health and safety.
Changes have been made to the way claims for compensation following an injury at work can be made. This includes deterrents against dishonest and fraudulent claims. Inducements by law firms have been curtailed. The reforms of removing strict liability provisions have also made some claims for “breach of statutory duty” impossible and now claimants will only be able to bring cases under common law where negligence can be proved.
These reforms relate to the perceived “compensation culture” within the UK, but again the reforms relate to financial consideration for employers. The reforms do not appear to consider the needs of the injured party. When someone is killed, injured or made sick through work and where their employer has been negligent or breached the law, they and their families deserve to be properly compensated. The financial burden on individuals and families following injuries at work can be enormous and these reforms which make claims more difficult will add to the burden.
Making Health and Safety Simpler
Action has been taken to revoke a good deal of legislation in an effort to provide a simpler regulatory framework. The HSE has introduced a good deal of web-based guidance to accompany legal requirements. It has tried to clarify issues such as those relating to Portable Appliance Testing of portable electrical appliances and misinterpretations regarding work at height. Some ACOPs have been withdrawn and others re-drafted.
The Health and Safety industry has been plagued by misinterpretation of health and safety legal requirements and the disproportionate application of those requirements. Stories of local authorities banning children from “conkering” and so on, do nothing to improve the reputation of health and safety and waste time and resources. Any action to encourage a sensible and proportionate application of health and safety measures and to concentrate on those issues which really matter must be step in right direction.
This report marks the evolution not only of the HSE, but the face of health and safety in Britain. Not all of the changes have been welcomed and there is concern about many of them, such as the proposed changes to the duties of the self-employed. Many of the changes appear to be sensible. However the reforms seem to have been driven by financial motives, and the test will be whether in time, more lives are saved and fewer people are injured or made ill through their work. Only time will tell.