Employers face major health and safety at work shake-up

Howard Fidderman reviews the Government's attempts to give occupational safety and health a new impetus in the first quarter of the 21st century.

The Government has unveiled a package of measures intended to give a new impetus to occupational safety and health (OSH). The package includes a 10-point strategy (see below) supported by a 44-point action plan offering employers a combination of incentives, practical support and enforcement threats. Amongst the most important potential implications for employers are named directors of safety, novel types of penalties and greater emphasis on a persuasive business case for OSH investment.

The Government believes that the steady progress made since the HSW Act was enacted has been slowing down in recent years and that, although the HSW Act has been a success, there is still much to be done: 25 million working days are lost every year as a result of work-related injuries and ill-health; two million people suffer from work-related ill-health; and over one million workers are injured each year. These concerns led the Government to issue a consultation paper in March 1999, Revitalising health and safety. The aims of that document, and the resulting strategy statement, are fourfold:

  • to inject new impetus into the OSH agenda;

  • to identify new approaches - especially for small firms - to reduce further rates of injury and ill health caused by work;

  • to ensure the Government's approach to OSH regulation remains relevant to the changing world of work over the coming 25 years; and

  • to gain maximum benefit from links between OSH and other government programmes.

    Targets

    For the first time in the area of OSH, the Government has set specific targets. All three targets must be realised by 2010, with half of the improvement to be secured by 2004:

  • a 30% reduction in the number of working days lost from work-related injury and ill health, ie a decrease of 7.5 million days;

  • a 20% reduction in the incidence of people suffering from work-related ill health, ie 80,000 fewer new cases (this was proposed in the HSE's 1998 discussion document, Developing an occupational health strategy. The HSE was due to announce the strategy on 5 July); and

  • a 10% reduction in the fatal and major injury rate, ie 3,000 fewer injuries.

    In a statement accompanying the launch of the document, the HSE says that success will depend on implementation of the strategy statement, the action plan, the HSC's strategic plan, and the commitment of, and effective partnerships between, the stakeholders - employers, employees and their representatives, enforcers etc. The HSC chair, Bill Callaghan, said he would ask all stakeholders to draw up an action plan over the next year to show how they would meet the targets, and added: "The HSC, HSE and local authorities will do all they can to help improve health and safety at work. However, I will be looking for top-level commitment from employers, unions and others to agree and set targets for their own sectors and firms.

    "Health and safety at work should be a core requirement of business activity, not an inconvenient 'add-on'. As far as I am concerned, those who cannot manage health and safety, cannot manage. We need to create a positive health and safety culture which sees business go beyond doing the statutory minimum."

    Below we look at the main action points proposed by the HSC and DETR. A summary of all 44 points is provided below.

    ENFORCEMENT INITIATIVES

  • The Government insists there will be no change to the basic balance between the HSE's duties to advise, inspect, enforce and investigate.

  • The report commits the HSC to developing a code of practice on directors' OSH responsibilities. The code will stipulate that organisations should appoint an individual director - or responsible person of similar status (for example in organisations where there is no board of directors) - as responsible for OSH. Ministers then intend to introduce legislation to make these responsibilities statutory - but only after it has received advice from the HSC and, once again, when parliamentary time allows.

  • The Government will remove Crown immunity from OSH enforcement, but is unsure what to replace it with. The most likely contender - and one favoured by the Home Office in respect of corporate killing (see p.7) - is the Food Safety Act model, which provides for statutory enforcement notices but, in lieu of prosecution, substitutes the power to seek a High Court declaration of non-compliance.

    Penalties

  • The HSC will publish an annual report that will name and shame all individuals convicted of OSH crimes in the preceding 12 months.

  • Only 7% of respondents to the consultation document thought that the level of fines currently imposed by courts was adequate. The Government states that it will seek an early legislative opportunity to extend application of the £20,000 maximum fine in the magistrates' courts to nearly all OSH offences, and to allow courts to imprison for a wider range of offences. An ongoing attempt to do this, using a Private Member's Bill, was stopped for a second time, when members objected on 9 June to a Second Reading. The Bill will come up again on 21 July, but its prognosis is bleak. The Government will also consider referring OSH offences to the independent Sentencing Advisory Panel.

  • The HSC will consider innovative penalties, including:

    -linking fees to company turnover or profit;

    -the prohibition of director bonuses for a fixed period;

    -suspension of managers without pay;

    -suspended sentences pending remedial action;

    -compulsory health and safety training;

    -penalty point system modelled on the driver's licence system;

    -fixed penalty notices for specific offences;

    -deferred prohibition notices on welfare issues; and

    -wider use of community service orders.

  • The Government will consider amending the HSW Act to enable private prosecutions without the consent of the Director of Public Prosecutions. The Home Office has made a similar recommendation in respect of its proposed offence of corporate killing (see Penalising corporate killers).

    Motivating employers

  • The HSC will produce a "ready-reckoner" - a leaflet and a software package - for employers, supported by case studies that demonstrate the business case for OSH. The insurance industry has agreed to circulate the documents with employers' liability insurance renewals.

  • The HSC will produce guidance by March 2001 to allow large businesses to report publicly to common OSH standards. The reports should cover OSH policies; incidents reportable under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR); and enforcement action, including notices, prosecutions and fines. The HSC and Government will challenge the UK's "top" 350 businesses to report to these standards by the end of 2002, with businesses employing more than 250 workers following suit by 2004. Ministers stress, however, that should a voluntary approach fail, they are minded to compel. All public bodies will have to summarise their OSH performance in their 2000/01 annual reports.

  • The HSC will advise ministers on steps to allow companies to check their OSH management arrangements against a "yardstick". The absence of an OSH management standard - either nationally or internationally (see p.6) - may mean that companies pay less attention to the management of OSH than they do to either environment or quality, both of which enjoy management standards.

  • Subject to resources being made available, the HSE will set up an integrated call centre to allow reporting under RIDDOR by telephone, fax or internet. It is also considering issuing a consultative document on specific changes to the law that would require employers to investigate accidents.

    Small firms

  • The HSC believes that it can improve the OSH profile within small firms by expanding the way in which it obtains their views (including through representation on the HSC); simplifying laws that particularly affect small firms (without lowering standards); and securing an effective OSH profile with the Small Business Service which, from April 2000, has provided a one-stop-shop for information and advice.

  • The HSE is reviewing all its guidance and will produce a "full portfolio of guidance products reflecting the needs of small firms and other customers". The guidance will provide realistic and practice-based models for OSH management in small firms

  • The HSC will also work on a grant scheme for small firms, including an examination of whether or not the Environmental Technology and Energy Efficiency Best Practice programmes could provide a model. The most likely components for a scheme would be drawn from subsidies for training, publications, videos and consultancy; and financial reward upon accreditation to a recognised standard.

    The HSW Act

  • The report notes that "many" of the findings of the Robens committee, which gave rise to the HSW Act, "remain valid" - particularly partnership and self-regulation based on goal setting. In his foreword to the report, the Deputy Prime Minister, John Prescott, reiterates that: "Preventing accidents and ill health, rather than dealing with the consequences, must be [the HSC/E's] priority."

  • But the HSC is to consider whether the Act should be amended to reflect the changing nature of work - in particular to ensure it provides the same protection to all workers regardless of their employment status. It is concerned that the general duties within the Act may not be able to deal adequately with the rising numbers of "apparently self-employed" people, as well as homeworkers, peripatetic workers and volunteers. It will also look at encouraging the principles of good management contained in the Construction, Design and Management Regulations 1994 to other sectors.

  • At the conference to launch the strategy, Mr Prescott let slip that the large number of ideas requiring legislation might mean that he would replace the HSW Act.

    Safety representatives

  • The theme of partnership runs through much of the strategy, although the document is less precise on enhancing the rights of workers and their representatives. Bill Callaghan said that he would "in particular . . . like to see an increasing role for safety representatives. As well as contributing significantly to improving health and safety, they also encourage the kind of partnership approach we are looking for".

  • The HSC will follow its discussion document on worker participation with a consultative document. The DETR-HSC strategy gives no hint whether or not this will contain proposals for roving safety representatives, although it will suggest new (unspecified) steps to widen employee participation in non-unionised workplaces.

  • The Government will ask the Learning and Skills Council, in consultation with the HSC, to undertake an early review of the funding and provision of training for safety representatives.

    Prognosis uncertain

    The action points in the HSC-DETR strategy document are likely to result in a continuing shake-up of the UK's health and safety system (although most of the proposals would need to be developed separately in Scotland and Northern Ireland). There are a number of caveats here:

  • The document is not quite as radical as ministers would have stakeholders believe. It is, in particular, business as usual for the HSE, and remarkably lacking in any ideas about local authority enforcement. Many of the action points - increasing fines and naming and shaming criminals, for example - merely bring together and repackage existing initiatives.

  • Every initiative that depends on legislation is qualified with the proviso "as parliamentary time allows". Ministers are unable to guarantee that time will be found before the General Election.

  • Many important issues leave the HSC to consult. Although clearly desirable, some of these ideas have been around for years and will not now be realised for a long time.

  • There is a disappointing lack of progress and imagination in important areas - notably on insurance (action points 5 and 6 in the box above). Although neither the HSC nor DETR will say so, they have clearly been unable to realise the progress that had seemed possible a year ago. Instead the strategy merely observes current practice and hopes that some of its better elements can be developed, for example extending the loading of premiums on the basis of risk to lower hazard sectors and smaller employers.

    Even so, there is sufficient in the document to be optimistic about stakeholders realising the targets. Furthermore - and as with the manslaughter consultative document (see p.7) - it is the attitude and insistence of the Government that is likely to be the determining factor. Deputy Prime Minister, John Prescott, said: "I want businesses to raise their game . . . Bill Callaghan and I are writing to stakeholders in the health and safety business with a strong message - that they must never ignore their responsibilities and the rights of their workers. Health and safety is a priority issue for those at the top of all organisations and they must be prepared to face the consequences of ignoring the law; in future that could well mean prison."

    THE GOVERNMENT'S 10-POINT STRATEGY FOR IMPROVING HEALTH & SAFETY AT WORK

  • The OSH system must promote better working environments and not just prevent work-related harm.

  • The Government must promote the contribution of a workforce that is "happy, healthy and here" to productivity and competitiveness.

  • Occupational health must remain a top priority (starting with the launch of the HSC's strategy in July).

  • There is a need to engage small firms positively by promoting models of how they can reap benefits from effective OSH management.

  • The compensation, benefits and insurance system must motivate employers to improve their OSH performance.

  • There is a need for a more deeply engrained culture of self-regulation, particularly in small and medium-sized enterprises.

  • Partnerships must be developed to help realise the full vision of the Robens report for worker participation in OSH.

  • The Government must lead by example through best practice and procurement practices.

  • There is a need for education in health and safety skills and risk management from primary school level onwards.

  • The best way to secure OSH is to "design it in", particularly where complex contractual arrangements operate.

    THE CONSULTATION ON REVITALISING HEALTH AND SAFETY

    Following its launch on 1 July 1999, the Government distributed over 7,000 copies of its Revitalising health and safety consultative document, and received 290 responses. It also circulated 40,000 leaflets targeted at employers, workers, and small and medium-sized enterprises, receiving 194, 860 and 134 responses respectively.

    The DETR reports that nearly all respondents thought that more could and should be done to raise OSH standards, and that the suggestions fell into seven themes:

  • raising awareness of OSH issues through - in descending order of popularity - education, promotion of the business case, more training, better guidance, national campaigns and cultural change in the workplace;

  • enforcement action - more inspection, increased funding for regulators, stiffer penalties, more energetic enforcement, greater attention to incident recording and reporting;

  • boardroom issues - ensuring that OSH is included in company annual reports, indicating publicly the director responsible for OSH, including OSH on board-meeting agendas and clarifying the position on corporate responsibility;

  • a more proactive role for the insurance industry in promoting OSH awareness and reflecting performance more sharply in premium levels;

  • enhanced powers for safety representatives, including the right to serve "provisional improvement notices";

  • better access to occupational health services for all workers, including a new focus on the provision of rehabilitation services; and

  • financial incentives to motivate employers to act.

    44 WAYS TO RAISE STANDARDS

    The HSC and the Department of the Environment, Transport and the Regions have produced 44 action points for OSH stakeholders.

    1.The HSC will publish and promote a "ready-reckoner" supported by case studies to drive home the business case for better occupational safety and health (OSH) management.

    2.The HSC will promote publication of guidance, by March 2001, to allow large businesses to report publicly to a common standard on OSH issues.

    3.The HSC will review the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995.

    4.The HSC will advise ministers on steps that companies might take, voluntarily, to check their OSH management arrangements against an established "yardstick". (This work will include implications for small firms and the role standards can play in addressing their needs.)

    5.The HSC will consider how best to involve the insurance industry more closely, including possible representation on its advisory committees.

    6.The Government will work with the HSE to ensure that a larger number of inspectors have powers to enforce the Employers' Liability (Compulsory Insurance) Act 1969 and amending Regulations.

    7.The Government will seek an early legislative opportunity, as parliamentary time allows, to provide the courts with greater sentencing powers for OSH crimes.

    8.The HSE will monitor and draw public attention to trends in prosecution, convictions and penalties, by publishing a "name and shame" annual report.

    9.The HSC will advise ministers on the feasibility of consultees' proposals for more innovative penalties.

    10.The Government will consider amending the HSW Act (when parliamentary time allows) to enable private prosecutions to proceed without the consent of the Director of Public Prosecutions.

    11.The HSC will develop a code of practice on directors' OSH responsibilities, including a stipulation that organisations should appoint an individual director for OSH. Once the HSC has advised on how to make these responsibilities statutory, ministers intend, when parliamentary time allows, to legislate.

    12.Ministers and the HSC will endorse an OSH checklist and circulate it to all government departments and public bodies, including local and health authorities, as a catalyst for improvement.

    13.All public bodies will summarise their OSH performance and plans in their annual reports, starting no later than the report for 2000/01.

    14.The Department of the Environment, Transport and the Regions and the HSE will pioneer a high-level forum to provide leadership on OSH management issues within the Civil Service.

    15.The Government will seek a legislative opportunity, when parliamentary time allows, to remove Crown immunity from statutory OSH enforcement. Until immunity is removed, the relevant minister will be advised whenever Crown censures are made.

    16.The HSC will consider further whether the 1974 Act should be amended, as parliamentary time allows, in response to the changing world of work.

    17.The Government will ask the Learning and Skills Council, in consultation with the HSC, to review the funding and provision of training for safety representatives.

    18.The HSE will take further action to publicise the right of workers to contact it, particularly in the light of the protection provided by the Public Interest Disclosure Act 1998.

    19.The Clients' Charter, which will be launched later this year as part of the Movement for Innovation in the construction industry, will include targets on OSH. Government departments and their sponsored bodies will sign up to the Charter. The Government will consider how this approach can be used for other areas of procurement.

    20.The Local Government Construction Task Force will consider how OSH issues can be most effectively built into construction procurement by local government.

    21.The HSE will produce guidance for government departments and other public bodies on how best to achieve exemplary standards of OSH in construction projects with which they have an involvement.

    22.The HSC will take action, consulting the new Small Business Service in England, to ensure that the views of small firms are fully taken into account in policy formulation; and will seek to identify areas of regulation that affect small firms and can be simplified without lowering standards.

    23.Within the framework set by the Nolan procedures for public appointments, the Government will seek to enhance representation of small firms on the HSC.

    24.The HSC and the new Small Business Service will secure an effective profile for OSH within the service, both centrally and locally.

    25.The HSC and HSE will promote positive models of how small firms can benefit from effective OSH management, through a range of information products including clear, straightforward sector-specific guidance supported by case studies.

    26.The HSC will advise ministers on the design of a grant scheme to encourage investment by small firms in better OSH management.

    27.The HSC will work with local authorities to propose an indicator against which the performance of local authority enforcement and promotional activity in England, Scotland and Wales can be measured.

    28.The HSC will work with government departments and other partners to promote and implement fully the new occupational health (OH) strategy for Great Britain.

    29.The Government will encourage better access to OH support, and promote OH in local health improvement programmes and primary care group strategies.

    30.As part of the next stage of the New Deal for Disabled People, the Government is considering how best to strengthen retention and rehabilitation services for people in work who become disabled or have persistent sickness.

    31.The HSC will consult on whether the duty on employers under OSH law to ensure the continuing health of employees at work, including action to rehabilitate where appropriate, can usefully be clarified or strengthened.

    32.The HSC will work in partnership with the Department for Education and Employment and the Disability Rights Commission to ensure that OSH law is never used as a false "excuse" for not employing disabled people, or continuing to employ those whose capacity for work is damaged by their employment.

    33.The revised National Curricula in England (from September 2000) and Wales (from August 2000) will include more extensive coverage of risk concepts and OSH skills at every level.

    34.The Government and HSC will ensure that safety-critical professionals such as architects and engineers receive adequate education in risk management through direct approaches to higher and further education institutions and professional institutions.

    35.The HSC will work with the Scottish Executive, the National Assembly for Wales and Regional Development Agencies in England to ensure that: OSH considerations are taken into account in policy-making at national and regional level, for example in economic policy and public health initiatives; and that the HSC's work reflects national and regional interests.

    36.The HSE will consider the feasibility of reorganising its regional structure in England so that it is coterminous with the Regional Development Agencies, with the aim of facilitating more effective liaison.

    37.Within the framework set by the Nolan procedures for public appointments, the Government will seek to ensure a balance of representation on the HSC from Scotland, Wales and the English Regions.

    38.The HSC will hold some meetings in public each year.

    39.The HSC aims to use the powers in the Freedom of Information Bill to remove restrictions on disclosure of information imposed by s.28 of the HSW Act.

    40.The Government will develop proposals for sharing with OSH regulators information about business start-ups held by other authorities, by March 2001.

    41.The Government will incorporate OSH guidance into the new Cabinet Office integrated policy appraisal system, and establish a "virtual OSH network" of key Whitehall contacts to enable rapid electronic dissemination of information.

    42.The HSE and the Government will increase the number of secondments between the HSE and central or local government, industry or trades unions.

    43.In implementing this strategy statement, the Government and the HSE will ensure that all sections of society are treated fairly.

    44.The Government, HSC and HSE will work together to explore options for organisational change to address these issues.

    1"Revitalising health and safety: strategic statement, June 2000", DETR Free Literature, PO Box 236, Wetherby, West Yorkshire LS23 7NB tel: 0870 1226236; fax: 0870 1226237.