Directors take safety on board

Howard Fidderman looks at the implications of new HSC guidance for directors.

The HSC has issued the final version of its guidance to help directors manage the health and safety risks arising from their organisation's activities.1 The text has barely changed from that consulted on in January 2001 (HSC targets directors). The guidance, which realises a commitment given by the HSC and the Government in their 2000 Revitalising health and safety strategy (Employers face major health and safety at work shake-up):

  • recommends that all types of private and public sector organisations appoint a board director for health and safety; and

  • urges directors and boards to be aware of, and to promote, health and safety matters and ensure they are taken into account when making any decision affecting the business.

    As we noted at consultation stage, the guidance's provisions - other than those on health and safety directors - are little more than a restatement of existing duties and HSE advice, with which some organisations will already be complying. Even so, the guidance should have a galvanising effect on senior management in many organisations and provide practitioners with a lever to help motivate their directors.

    The consultation exercise resulted in the distribution of 1,560 copies of the HSC's proposals; a further 11,000 people read the document on the HSE website. The HSE received 462 responses, of which 81% supported the introduction of guidance and an "overwhelming majority" were in favour of the proposed content.

    This support is reflected in the absence of any substantial changes to the draft text. The few changes that have been made to the detail are described later in this article. In addition:

  • all references to "employees" and "staff" in the draft are now, in the final version, to "workers" - presumably to emphasise the point that directors' duties go beyond their own employees; and

  • the document is clear that its status is that of "guidance". The draft had misleadingly described itself throughout as a "code", despite an introduction stating that it was guidance (which is less important in law than a code).

    The final version of the guidance, like the initial draft, comprises an introduction, five action points, a summary of health and safety legal responsibilities and a reading list.

    Leadership

    The first action point urges every board to accept formally and publicly its collective role in providing health and safety leadership in its organisation. The HSC adds that:

  • strong leadership is vital to effective health and safety control;

  • everyone should know that the board is committed to continuous improvement;

  • the board should explain its expectations and how the organisation will deliver them;

  • the statement of health and safety policy should be a "living document" devised in consultation with the workers, and should be reviewed, revised and brought to the attention of all workers.

    The second action point emphasises the need for all board members to accept their individual role in providing health and safety leadership for the organisation:

  • directors should ensure their decisions and actions always reinforce the messages in the board's health and safety policy statement - any "mismatch" will undermine the staff's faith; and

  • directors must recognise their personal responsibilities and liabilities under the law.

    Board decisions

    The board needs to ensure, states point three, that all board decisions reflect its health and safety intentions, as articulated in the health and safety policy statement. The guidance adds:

  • many business decisions - for example, investment in plant and premises - will have health and safety implications;

  • directors should look at the health and safety management of organisations with which they do business - purchasing decisions and the engagement of contractors should reinforce, not damage, the board's health and safety intentions;

  • directors must alert customers to any risks and precautions related to the company's products;

  • the board should ensure that its managers and supervisors are competent to induct workers in new practices (this is an addition to the draft);

  • the board should remember that although it can, and should, delegate health and safety functions, legal responsibility for health and safety rests with the employer; and

  • it is important that directors recognise their continuing responsibility for health and safety when work is contracted out (this point was not explicit in the consultation text).

    Participation

    Action point four states that the board needs to recognise its role in engaging the participation of its staff in improving health and safety:

  • effective risk management requires active participation of staff; and

  • the board should encourage employees at all levels to become actively involved in all aspects of the health and safety management system.

    This action point now includes a statement of workers' responsibilities: "It is also important to note that all workers have a duty, while at work, to take reasonable care for their own health and safety and that of other people who may be affected by their actions or omissions". (This description of the law, previously confined to the guidance's summary of legal responsibilities, sits rather strangely as an action point for directors.)

    The health and safety director

    The guidance's fifth action point involves two separate issues. The first is that the board needs to ensure it is kept informed of, and alert to, health and safety risk-management issues. The guidance states that the board must:

  • review regularly - and at least annually - the organisation's health and safety performance;

  • ensure the safety policy statement reflects current board priorities;

  • ensure that the management system provides for effective monitoring and reporting of the company's health and safety performance (the introduction to the guidance notes that: "It is also important that directors, in carrying out their responsibilities, set out their expectations of senior managers with health and safety responsibilities");

  • be kept informed of any significant health and safety failures and of subsequent investigations;

  • ensure that it addresses the health and safety implications of all decisions; and

  • ensure that health and safety risk-management systems are in place and remain effective.

    The guidance recommends that boards appoint one of their number as "health and safety director". "By appointing a 'health and safety director', you will have a board member who can ensure that these health and safety risk management issues are properly addressed, both by your board and more widely in your organisation". This replaces the original justification of ensuring "there is a board champion for health and safety risk management issues".

    The HSC does not suggest the appointment of any particular director: it is happy for a board to assign the responsibilities to the chair or chief executive, as long as there is clarity about the health and safety responsibilities and functions, and that the board properly addresses the issues. The final version adds that: "The chairman and/or chief executive have a critical role to play in ensuring risks are properly managed and that the health and safety director has the necessary competence, resources and support of other board members to carry out their functions."

    Nevertheless, the HSC guidance remains insistent that every director, and the board as a whole, takes responsibility for health and safety: "The health and safety responsibilities of all board members should be clearly articulated in your organisation's statement of health and safety policy and arrangements. It is important that the role of the health and safety director should not detract either from the responsibilities of other directors for specific areas of health and safety risk management or from the health and safety responsibilities as a whole." (The HSC added the italicised words to the draft following consultation.)

    More to come …

    The consultation document specifically asked respondents whether or not they believed the wording of the guidance would cover complex organisational structures and, in particular, a subsidiary's board that has a health and safety leadership role. The final text does not address these issues. Instead, the HSC will publish supplementary guidance in the autumn "to provide further advice on implementing the recommendations to assist those directors and senior people in public and voluntary sectors, and directors in companies with complex structures".

    Uncertainty, however, surrounds the commitment in Revitalising that the HSC would: "advise Ministers on how the law would need to be changed to make these responsibilities statutory, so that directors and similarly responsible persons are clear about what is expected of them in their management of health and safety. It is the intention of ministers to introduce legislation on these responsibilities." It appears that the HSC is now back-tracking on this commitment. All HSC Chair Bill Callaghan would confirm was that the HSC/E "will be monitoring very closely the impact this guidance has on improving corporate responsibility". An HSE official told HSB that there were no legislative plans at the moment, but that it was conceivable that provisions could be included in the Safety Bill.

    1"Directors' responsibilities for health and safety", 25 July 2001, INDG343, www.hse.gov.uk/pubns/indg343.pdf , or HSE Books, free or priced packs, ISBN 0 7176 2080 8.