Examining the Young review of health and safety
Flawed, disappointing and seminal - Howard Fidderman reports on the most eagerly anticipated health and safety review since "Revitalising".
On this page:
The Young diagnosis
Consultants and the climate of fear
Box 1: Combating the "compensation culture"
Health
and Safety at Work Act stays intact
"Low-hazard" environments
Risk assessment exemptions
RIDDOR to start at a week off work
Box 2: Encouraging insurers
Keeping "Good Samaritans" out of court
Emergency service heroes
More school trips
Box 3: Adventure and play
Local authority shortcomings
Making local authorities consistent
Box 4: Bills before Parliament
Recommendations accepted
The good
Accreditation myths
The ambiguous
The irrelevant
The questionable
The impracticable
Regulatory misconceptions
Common sense and perception
Staying inside the political tent
A bringer of solutions?
Table 1: Young recommendations' implementation "milestones".
The author of the most significant review of health and safety in the past decade has admitted that his 25 recommendations are unlikely to save a single life or avoid a single injury. Lord Young of Graffham's report (PDF format, 685K) (on the Number 10 website), which was prepared at the instigation of Prime Minister David Cameron, instead concentrates on repairing the image of health and safety by tackling what he perceives to be an onerous and over-zealous culture of risk assessment, fuelled by unqualified consultants and unscrupulous lawyers.
Among the more significant recommendations of Young's report are:
- an accreditation scheme for safety consultants (and in what is almost an aside, an optional lower qualification at technician level for those employed by businesses as health and safety officers);
- a single set of health and safety Regulations in place of the current "raft";
- lengthening the period of absence before an employer has to report an injury (from "over three" to "over five" days);
- combining local authority (LA) food safety and health and safety inspections;
- allowing accredited private sector bodies to carry out food safety inspections;
- special provisions for low-risk enterprises, including downloadable risk assessments and compliance checklists;
- scrapping risk assessments for homeworkers;
- allowing the self-employed to choose whether they provide risk assessments;
- a review of the Health and Safety at Work (HSW) Act to separate workplace from leisure and play requirements;
- preventing health and safety being used as an excuse for limiting school trips and public events;
- reining in claims management companies; and
- pressure on insurance companies to play a more constructive role in workplace safety, particularly for small and medium-sized enterprises (SMEs).
The Young diagnosis
Young insists that the standing of health and safety has "never been lower" in the eyes of the public, with disproportionate claims for compensation and press stories about "absurd" applications. These are, he believes, "largely the result of the way in which sensible health and safety rules that apply to hazardous occupations have been applied across all occupations". This has been done in a "disproportionate way", which is "sometimes experienced as a 'Kafkaesque' web of red tape which small organisations in particular find exceptionally burdensome and costly". He lays the blame for this approach at two doors:
- the EU, starting with the 1989 Framework Directive, which was originally implemented in the UK by the Management of Health and Safety at Work Regulations 1992 (MHSW) and which "made risk assessments compulsory across all occupations, whether hazardous or not"; and
- "the enthusiasm with which often unqualified health and safety consultants have tried to eliminate all risk" rather than apply the "reasonably practicable" approach of the HSW Act.
Hand-in-hand with an overbearing EU and over-enthusiastic consultants come avaricious lawyers and a perceived culture of compensation. Young, in fact, starts his review with compensation, acknowledging that "it may seem unusual to commence a review of health and safety with the state of litigation in the country but I believe that a 'compensation culture' driven by litigation is at the heart of the problems that so beset health and safety today". Faced with so "much litigation support readily available for claimants", business owners and managers "are forced to rely completely on their insurance policies for protection, and believe that they must follow their consultant's report to the letter for fear that their cover may be imperilled".
The critical point, states Young, is that "these factors combine to create an adverse climate for the proper application of health and safety", which requires him to tackle "the whole range of factors that impact both on the reality and perception of the way things currently operate. This means addressing the unnecessary bureaucracy around health and safety, the context of the fear surrounding the compensation culture, and the role that health and safety professionals, the insurance industry, claims management companies and lawyers play."
Consultants and the climate of fear
The "compensation culture" results in a "climate of fear", argues Young, which is "compounded by the actions of some health and safety consultants ... who have a perverse incentive to take an overzealous approach to applying the health and safety regulations. As a consequence, they employ a goal of eliminating all risk from the workplace instead of setting out the rational, proportionate approach that the HSW Act demands." This problem is "exacerbated" by insurers, "some of whom insist on costly and unnecessary health and safety risk assessments from external consultants".
This is all linked, says Young, to the fact that there are "no minimum qualification standards" for health and safety consultants. As such, he calls for a system of accreditation, with the HSE initially taking the lead in establishing a validation body, although the scheme should ultimately be run by an independent professional body and be self-financing. There should be an "obligation to provide proportionate advice to clients and to have an appropriate disciplinary code in place to deal with any non-compliance with this requirement". Young hoped that the validation body would be established within months and be fully operational within one year. The HSE will maintain a web-based directory of qualified consultants, but the Trading Standards Institute will police the system.
Fortunately for Lord Young, the professional bodies have been working on just such a scheme for the past couple of years and, within hours of Young's report appearing, the HSE announced that the Occupational Safety Consultants Register (OSCR) would go live in January 2011. For the moment, Young is content to allow the scheme to operate on a voluntary basis, with the health and safety professional bodies "given the opportunity to demonstrate that a scheme for professional standards can operate effectively before going down the path to legislation". He warns, however: "Legislation may be required to vest the responsibility for not only the setting of standards of admittance to the list of consultants, but also the responsibility for the behaviour of consultants in the field."
Box 1: Combating the "compensation culture" Allegations of a "compensation culture" have afflicted the UK for some years now, despite a succession of persuasive reports that concluded the culture is a myth. Young, however, continues to peddle the myth on the one hand while acknowledging the reality on the other. Thus he makes great play of the existence of 800,000 compensation claims in the UK in 2009 and regular newspaper "stories of individuals suing their employers for disproportionately large sums of money for personal injury claims, often for the most trivial of reasons". The effect of these, he argues, is "a growing fear among business owners of being sued for even minor accidents". And yet he is equally clear that "the problem of the compensation culture prevalent in society today is ... one of perception rather than reality." He also focuses most of his recommendations on lawyers who make large sums out of compensation claims: in 2009/10, for example, the NHS Litigation Authority paid out £297 million in damages and £163.7 million in legal costs. The "real sense that we live in an increasingly litigious society", he argues, is fuelled by the growth of claims management companies, "no win, no fee" arrangements and the "barrage of adverts every time we switch on the television and radio". He traces the problem to the Access to Justice Act 1999, which introduced three major changes: the introduction of conditional fee agreements; the growth of after-the-event (ATE) insurance; and the proliferation of claims management companies, which auction claims to the solicitor who will pay the most - more than 15% of the cost of a claim goes in referral fees alone. In 2009, the Law Society and the Bar Council recommended banning referral fees because they limit access to justice (the Legal Services Board, however, disputes there is evidence of this). Young, however, is "in no doubt that the payment of referral fees and the accompanying culture that sees claimants rewarded before the legal process has even begun creates a climate in which businesses, the public sector and even voluntary and charity organisations fear litigation for the smallest of accidents, and then manage risk in accordance with this fear". Compensation solutions Although he accepts there is some regulation - the Claims Management Regulator (CMR) started in April 2007, and claims management companies have to comply with advertising and procedural rules - Young believes that the regulation does not go far enough. He has therefore written to the CMR, the Solicitors Regulation Authority and the Advertising Standards Authority asking them to address the problem and control the volume of advertising. Young also fully endorses the recommendations of Lord Justice Jackson's January 2010 report on the increasing costs of litigation. This recommended that ATE insurance premiums should cease to be recoverable from the losing party. Although this would not prevent "no-win, no-fee" arrangements, it would limit the costs for the losing side. Jackson also recommended: a 10% increase in the amount of "general damages"; a cap on a lawyer's success fee of 25% of any settlement; a ban on referral fees; allowing lawyers to enter into contingency fee agreements (or damages-based agreements) under which they take a case on a no-win, no-fee basis and take a pre-agreed share of damages if successful, but nothing if unsuccessful. Young welcomes the Ministry of Justice's autumn consultation on Jackson's recommendations and urges the Government to adopt them as soon as possible. Additionally, Young recommends extending the Road Traffic Accident Personal Injury Scheme to include other personal injury and lower-value clinical negligence cases, which, he asserts, should simplify and expedite claims, reducing costs for all parties. He believes, too, that the scheme would need its upper limit increased from £10,000 to £25,000. One incidental benefit would be the "vastly reduced scope for advertising that a scale fee system will deliver". Overall, Young insists: "Clearly, it is right that people who have suffered an injustice through someone else's negligence should be able to claim redress. It is a basic tenet of law and one on which we all rely. What is not right is that some people should be led to believe that they can absolve themselves from any personal responsibility for their actions, that financial recompense can make good any injury, or that compensations should be a cash cow for lawyers and referral agencies." |
HSW Act stays intact
The UK's health and safety record is, Young admits, "enviable", with one of the best accident rates in the EU, while the HSW Act has "provided an effective framework for businesses and individuals for almost 40 years". As such, he emphasises that none of his recommendations relating to the Act "applies to hazardous occupations where the present system, although probably overly bureaucratic, is nevertheless effective in reducing accidents at work".
The principles of the Act's risk-based approach have, believes Young, been "continually eroded" by the "compliance-driven approach and prescription" of EU legislation. Although there is no need for major changes to the framework of the Act, many of today's problems, he believes, "have their origin in how the legislation is interpreted and implemented". This needs to be addressed through non-legislative reforms, and by making some of the regulations more accessible to businesses. The MHSW Approved Code of Practice (ACoP), he says, is "not particularly user friendly because it combines the actions needed in hazardous and non-hazardous workplaces".
Of particular note here is a recommendation to review the current raft of regulations "in order to consolidate them into a single set of accessible Regulations". At the same time, he urges the HSE to ensure "the consolidated regulations and guidance are framed around the principles of the 1974 Act and reflect a proportionate response to risk". It is "almost impossible" for businesses to understand how the "plethora" of legislation fits together, which "creates uncertainty and a tendency to look to external experts for guidance where this is not required".
"Low-hazard" environments
Young defines low-hazard workplaces as those "where the risk of injury or death is minimal", including shops, offices and classrooms. As justification, he cites the absence of office fatalities in 2009/10, and that only 3% of workplaces injuries took place in offices. Inexplicably failing to mention stress, he lists the main risks in an office as musculoskeletal disorders, lifting injuries and minor slips and trips. Despite the "low risk", offices still have to complete a "suitable and sufficient" risk assessment.
"A lack of specific criteria," argues Young, "increases misunderstanding among employers about what is actually required, as does the language around the process." The HSE's advice is "not always accessible" and the process therefore "places undue burdens on businesses that operate in low-hazard environments. Costs of compliance fall disproportionately on smaller firms who often rely on consultants because of a lack of in-house expertise and insurer demands."
Young urges a return to the principles of the HSW Act, with simplified guidance and procedures for a written risk assessment in low-hazard environments. Although he acknowledges that the HSE has been active here for several years (including the publication of more than 30 model risk assessments), he believes that "small businesses are still sometimes unsure of what they need to do to comply with health and safety rules" and would welcome "more practical, authoritative guidance on what they need to do". This should be provided by the HSE through simple advice and downloadable risk assessments that will provide "a straightforward way of knowing that they have achieved the required standards to meet the goals set out in the Regulations" as far as is reasonably practicable. Young also wants the HSE to develop "a simple periodic checklist" for low-hazard workplaces which would "provide a record of the action being taken to address the risks, and would be a useful tool to demonstrate compliance in the event of litigation".
Young insists that this "is an interim solution" because he would like to negotiate with the European Commission "a reduction of burdens for low-hazard environments". He wants the UK to "take the lead in cooperating with other member states to ensure that EU health and safety rules for low-risk businesses are not overly prescriptive, are proportionate and do not attempt to achieve the elimination of all risk".
Risk assessment exemptions
Risk assessment duties do not generally differentiate between employees working on their employers' premises and those working at home. But, says Young, a written risk assessment is "unnecessary and intrusive", and he therefore proposes exempting employers from "risk assessments for all employees working in their own home" (although he later moderates this to "homes in a low-hazard environment").
He also recommends allowing the self-employed to choose whether or not to provide written risk assessments, unless they work in manufacturing, construction, an industrial activity, or use hazardous chemicals or otherwise pose a potentially significant risk to others through their work activity. The self-employed, he claims, "are best placed to make decisions about themselves and their businesses".
RIDDOR to start at a week off work
RIDDOR (the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995), Young believes, is often seen as a "cumbersome system", with under-reporting that "makes me question its successful operation" and data that "can be obtained from other sources". Reporting levels in 2009/10, for example, were 57%. He therefore recommends the HSE re-examine RIDDOR to determine whether or not it is the best approach to "providing an accurate picture of workplace accidents".
Currently, employers must report injuries that cause workers to be absent (or unable to perform their usual tasks) for more than three working days. Young recommends increasing this threshold to more than five working days, with employers continuing to record over-three-day injuries in the accident book. He justifies the change on the grounds that it would:
- "coincide with the requirement for individuals to obtain a fit note [the former sick note] from their GP if their absence from work is expected to last more than a week", thereby ensuring "that a person who has suffered a reportable injury has had a professional medical assessment";
- improve the accuracy of the injury data; and
- reduce significantly the number of reports an employer would have to make.
Box 2: Encouraging insurers In 2000, the Government and the then HSC's "Revitalising health and safety strategy" called on the insurance industry to increase its contribution to workplace health and safety standards. In the ensuing decade, the HSE made little headway, and now Lord Young is targeting the industry once more. Most of his attention, however, stems from his fear that insurers are asking too much of small and medium-sized enterprises (SMEs), including evidence that insurers are requiring a full risk assessment by external consultants before they will consider offering insurance to some SMEs. Young recommends that insurers "actively reconsider [this] practice of routinely requiring businesses to employ health and safety consultants". He is also writing to the Association of British Insurers (ABI) asking it to agree that where insurers still require businesses to use a consultant, they should accept only consultants listed on the new Occupational Safety Consultants Register. He also recommends that insurers, possibly through the ABI, be charged with drawing up a code of practice on health and safety to "prevent burdens falling disproportionately on small businesses and the voluntary sector" and give businesses "reassurance that they have complied with the appropriate levels of health and safety and the ability to obtain insurance" without having to use a consultant. "If the industry is unable or unwilling to do this," he proposes "legislating to ensure that non-compliance with this stipulation cannot be used as an excuse to refuse to meet claims, so long as the company has met their obligations under health and safety legislation". |
Keeping "Good Samaritans" out of court
One of the themes underpinning much of Young's report is that people are deterred from going the extra mile or "doing good" by the fear of litigation or prosecution. This, he says, is to the detriment of the "Good Samaritan", voluntary workers, emergency service heroes and teachers.
Young asserts that "health and safety is often seen by voluntary organisations as a barrier to their activities": a lack of access to the right information can result in a "tendency ... to take an over-cautious approach when assessing risk, which sometimes results in the curtailment of worthwhile activities". He suggests that the HSE takes a more proactive approach with interactive forms tailored to voluntary organisations. Young will also consult with insurers on how best they might provide appropriate guidance on complying with insurance requirements "and in not being overly restrictive or expensive" in their cover.
In addition to these organisational barriers, Young also believes that health and safety is deterring individual volunteers. "One of the great misconceptions, often perpetuated by the media, is that we can be liable for the consequences of any voluntary acts on our part," he says, even though "in fact there is no liability in the normal way, and the Lord Chief Justice himself is reported as saying that he had never come across a case where someone was sued in these circumstances. Yet this belief is particularly pernicious, as it may deter people from engaging in organised voluntary activities in the mistaken belief that they can be sued should anything go wrong." He traces this perception to the US, where "Good Samaritans are often liable (and in fact doctors and other medical professionals are instructed by their insurance companies not to stop at an accident)."
Young is adamant that "people who seek to do good in our society should not fear litigation as a result of their actions". The Government, he recommends, should "clarify (through legislation if necessary) that people will not be held liable for any consequences due to well-intentioned voluntary acts on their part". Young is not clear, however, about what he recommends where an individual may have been well-intentioned but was negligent, beyond noting the current position whereby "there is no liability in such cases unless negligence can be proved".
Emergency service heroes
In a similar vein, police and fire officers may, because of "the nature of the job … occasionally put themselves at risk to save the life of someone else". On this issue, Young states that it would "not be in the public interest to take action and investigate under health and safety law" although there is "some ambiguity" about this and "a clear need for certainty". He therefore recommends a "common-sense approach" to reassure police and fire officers that they "will not be investigated or prosecuted for undertaking an act of heroism". This approach should be reinforced by further guidance from the HSE, Association of Chief Police Officers and Crown Prosecution Service. It is important, he adds, that individuals can choose not to put themselves at risk, but that those "who go the extra mile and put themselves in harm's way to protect the public should continue to be recognised and rewarded for their bravery".
More school trips
What Young calls the "disproportionate approach", combined with the fear of litigation, has had a negative impact on education, decreasing "the number of opportunities available to children to experience risk in a controlled environment, especially through school trips and competitive sport". Taking children on educational visits, states Young, "involves a huge amount of form filling - ranging from consent forms to risk assessments - and the valuable time of education officials including the school governors, the head teacher, group leaders and the educational visits coordinator". He therefore proposes simplifying the process that schools undergo before taking children on trips; this will include revised guidance on off-site visits, and parents or guardians signing a single consent form covering all activities a child may undertake at school.
Box 3: Adventure and play Lord Young recommends replacing the Adventure Activities Licensing Authority with a code of practice covering adventure activities for people under 18 years of age. The licensing regime, says Young, "is seen as a cost and burden on business that adds little to the health and safety of young people", and the HSE believes existing legislation is sufficient. Further, he describes the £715 cost of a licence as a "disincentive to new entrants to the adventure activity market, especially to small companies". Although he rightly points out that the current regime is concerned with a narrow range of activities (caving, climbing, some water sports and some trekking), he is unclear whether or not the new code will have a wider scope. Young also strays into children's play areas, where he wants the system of risk assessment shifted to "risk-benefit assessment". Linked to this - and almost in passing - he mentions "reviewing the HSW Act to separate out play and leisure from workplace contexts". |
Local authority shortcomings
There are 3,200 LA inspectors responsible for health and safety, covering more than one million "lower-risk" workplaces, including offices, shops and residential care homes. Young recommends that the HSE, LAs and private organisations, where possible, simplify the enforcement system: there are, he believes, areas where the work of food standards and health and safety coincide, and that LAs should combine them in order to make efficiency savings (as, indeed, some LAs already are doing). Linked to this - and, potentially, one of the most radical implications of the report - is Young's observation that "there is an opportunity to reduce costs to LAs by opening the delivery of food hygiene inspections to nationally accredited private organisations, thereby allowing LAs to concentrate their resources on businesses that present a significant risk to public health."
Young welcomes the Food Standards Agency's new national Food Hygiene Rating Scheme, whereby each inspection is classified between zero and five, with the results published online. Although display by the outlets will be voluntary, Young recommends a 12-month review "and, if necessary", making display compulsory - particularly for businesses that fail to achieve a "general satisfactory" rating.
Making local authorities consistent
Young highlights the problems that arise from inconsistent enforcement and application of rules by LAs in terms of public events as well as the advice that is given to businesses with outlets in several LAs. The HSE has long been aware of the latter, and has taken steps to rectify it, starting with the Lead Authority Scheme. More recently, multi-site businesses have been able to deal with LAs through the Primary Authority Scheme, which allows businesses to deal with a single principal authority to agree standards. Since April 2009, about 300 partnerships have been established, covering 20,000 premises. Although Young accepts the scheme has been successful, within "limits", he argues it has insufficient "teeth" to remove inspection inconsistencies. For example, there is little obligation on LAs to comply with an inspection plan drawn up between a business and principal authority. Young therefore proposes a consultation to strengthen "the existing statutory framework underpinning the inspection plan provisions ... with an enhanced role for the HSE".
Turning to public events, Young believes that "the rules on health and safety are not always applied [by LAs] with a view to a proper risk management approach." This can result in poor advice that can, for example, ban an event such as a school fete "when there is no legitimate reason to on health and safety grounds". There is no requirement to put the reasons in writing and "the specific grounds for the decision are often not made transparent". Nor are there grounds for appeal. Young therefore recommends a right for individuals and organisations to ask for written health and safety reasons for the banning of an event, and where they believe LAs have been "over-zealous", a route for challenge and redress and, if appropriate, compensation where the event cannot be reinstated. To do this, he suggests the role of the local government ombudsman may need to be strengthened, with citizens given a fast-track process for referring decisions to the ombudsman to ensure decisions can be overturned within two weeks. If this fails, warns Young, legislation may be necessary.
Box 4: Bills before Parliament A dozen - as yet unpublished - Bills to implement aspects of Lord Young's report have already had a first reading in Parliament. They aim to:
|
Recommendations accepted
There are significant advantages in having an outsider look at health and safety and ask challenging questions. For its current strategy, the HSE consulted the usual suspects and came up with a document that few could disagree with and which, not surprisingly, resulted in things carrying on in substantially the same way they had for the previous decade. Lord Young's report does not fall into this category.
Young means to change things, noting explicitly that: "All too frequently, reports of this nature are left to gather dust on the shelves of Whitehall." Again, the report will not fall into this category, coming instead with a detailed implementation timetable (see table 1) that envisages work starting on the bulk of the most important of Young's recommendations by early 2011. And, within days of his report, a staggering 12 implementing (and, as yet, unpublished) Bills had first readings in the House of Commons. (This stage is a mere formality; the Bills themselves need only be published a couple of weeks before their second reading debate.) Although tabled in the name of Conservative backbencher Christopher Chope, the Bills will all be government handouts (see box 4).
The other important difference is David Cameron: the Prime Minister instigated the review and has - with the Cabinet - accepted all of the recommendations. He has also asked a "delighted" Young to stay on and see the changes through. This top-level empowerment of an individual marks a critical break with the past, when ministers would come and go, or the author would move on once his or her report was published.
The good
It is to Young's credit that he is attempting to address in a robust fashion the public perceptions that have - and no one should doubt this - belittled the reputation of what is actually a highly disciplined and responsible profession. Health and safety has, away from the workplace, become too much of a joke. It is not enough to dismiss this as unfair, or the product of ignorance or lazy journalism, or a tendency to inflate isolated events into a national malaise. The fact is that the perception has taken over the popular consciousness and this has had negative ramifications throughout society, right down to safety practitioners and union representatives struggling to carry out their jobs and functions. The HSE has been combating the myths for several years now, not least with its "myth of the month", but the mere presence of the Young review is stark evidence that it has not succeeded.
And there are sensible recommendations in the report, including:
- the restrictions on claims management companies and lawyers' fees;
- insistence that the insurance industry plays a proportionate and positive role;
- a full review of RIDDOR;
- simple risk assessment templates and checklists (although it is worth noting that one of Young's "solutions" to a tickbox and checklist mentality is downloadable documentation that could well encourage ... a tickbox approach); and
- an accessible register of accredited consultants.
Although some of these initiatives were under way well before Cameron first mooted the review in 2009, the spectre of the Young review greatly facilitated the desire to expedite a solution - particularly among the safety bodies in relation to consultants.
Accreditation myths
One of the biggest myths pedalled by Young concerns the lack of qualifications for safety consultants. While it is true that anyone can call themselves a consultant - in health and safety as in many other areas - it is insulting to the tens of thousands of qualified practitioners on the books of the main professional institutions to insinuate this is an under-qualified profession. As most HSB readers will know, membership of these bodies requires degrees, safety qualifications, practical experience and continuing professional development.
Most practitioners who are members of the recognised professional bodies will be entitled to a place on the new register. It should be far easier for employers to know where to look and what to look for. The problem, however, will be what to do about unqualified consultants, who will be free to carry on as before. When Young refers to consultants who are over-zealous or striving to eliminate all risk, he is careful to prefix "consultants" with "unqualified"; his solution, however, pertains only to qualified individuals. This means that for the register to work, the Government and professional bodies will have to publicise the register with vigour so that employers know always to use an accredited consultant and where to contact them. The HSE has, in the past, shown that it can communicate the importance of using accredited individuals - most notably around gas safety, first with CORGI and now with Gas Safe. The difference here, however, is that gas registration and the right to practice are statutory prerequisites; unregistered gas engineers can and do go to jail. The basis of the safety consultants register, however, is voluntary. A note of caution here: Young has not ruled out putting the scheme on a statutory basis should the professions prove unable to make a success of it; indeed, one of the 12 Bills would do precisely this. It will also be interesting to see how the professional bodies develop the next stage of the register to encompass specialist consultants such as occupational hygienists.
The ambiguous
One of the problems with the report is the absence of any detail on how the recommendations might work in practice. For example, a recommendation to review the HSW Act to separate the workplace from leisure and play requirements (again, a Bill to this effect is among the 12) lacks any explanation of how this might work. A notion that sounds superficially sensible is fraught with problems, not least that many leisure and play activities also involve work activities and will still need to be handled by the same inspectors. It is not necessarily that it is a bad idea - or that it cannot be made to work - but that the practicalities must, to an extent, determine the arrangements.
Ambiguities also surround the combining of food safety and workplace safety inspections. As we noted earlier, some LAs have already gone down this path. There are, however, essential questions that Lord Young did not answer:
- will these joint inspections be confined to premises covered by food safety legislation, or will food safety inspectors be able to carry out workplace health and safety inspections at any premises for which the LA is the enforcing body; and
- will the private organisations accredited to carry out food inspections also be able to carry out health and safety inspections and, if so, will these be confined to food premises or will they will be allowed to inspect at non-food premises?
The irrelevant
Some of the recommendations probably won't make a great deal of difference. Few employers are actually assessing homeworking risks and, of those that do, most merely ask homeworkers to complete a checklist themselves. The employers that do this say it is a useful exercise that gives both them and the worker peace of mind (and offers them a degree of defence in the event of a civil claim for compensation).
Or take the new law to stop fire and police officers being prosecuted for safety breaches when they commit a heroic act: when HSB asked Lord Young whether he could cite a single instance of this having occurred, he said he could not but "some people had told [him] they were worried it could become a problem."
The questionable
There are also some recommendations that make little sense. Allowing the self-employed to choose whether or not to carry out risk assessments fails to take account of work colleagues and members of the public who might be harmed by the work of an unscrupulous self-employed person, while the NHS and welfare system still pick up the bill for any injuries they sustain. Further, the question of whether a worker is "employed" or "self-employed" is often arbitrary, and would not seem a sensible basis on which to take a decision whether or not to conduct a risk assessment.
The recommendation to replace RIDDOR-reportable "over-three-day" injuries with "over-five-day" injuries is a worrying move. While it is true that such injuries are subject to significant under-reporting, they can indicate shortcomings. Hoping that employers will still record the injury in the accident book is insufficient. Remember, too, that whether a failure ends in a fatal, major, over-three-day, lost time or no injury is usually a matter of chance (and the adequacy of the medical response). The alignment of the five days' absence with doctors' fit notes is a smokescreen; the real intention behind the recommendation is obvious in the explanation to the Bill's title - ie to "reduce the duties on employers to report matters under RIDDOR".
The impracticable
The recommendation to consolidate all health and safety regulations into a single set will result in a single vast tome that, far from helping small businesses, is likely to leave them baffled and bewildered. When HSB asked Young how he saw this working in practice, he had no answers. A few days later, we asked HSE chief executive Geoffrey Podger the same question: his reply - in front of Young - was that there would have to be several sets of regulations and that the process would be subject to further consideration and public consultation, even though this is neither what Young recommended nor what the Prime Minister has accepted. What would be desirable and helpful to SMEs is a consolidation and simplification of the most important sets of regulations, particularly those around risk assessment; it is undeniable that the current number of different regulations can appear overwhelming to those without health and safety expertise.
Nor was Young able to say whether or not the consolidation will be restricted to low-hazard workplaces or applied universally. If it is the former, we will have a two-tier regulatory system; if the latter, it is at odds with Young's own assertion that his report does not affect high-hazard workplaces.
And following from this, the report suffers from the perennial problem of conflating small firms and low-hazard and low-risk activities and workplaces. Small firms are not necessarily "low risk", and "low-hazard" workplaces are not necessarily "low risk". Successive Governments have avoided delineating workplaces in general legislation on the basis of risk and hazard (aside from the likes of major-hazard industries). It is not possible to label LA-enforced premises per se as "low hazard"; many will also have high-risk activities (retailers, for example, will be faced with workplace transport issues and the threat of violence). If employers are left to decide which category they fall into, they will have no certainty they are compliant - until something goes wrong.
Regulatory misconceptions
Young also displays some fundamental misconceptions about the UK's legislation. First, he states he wants to return to the principles of the HSW Act, and attributes the problem to the extension to low-hazard workplaces of legislation that was designed for high-hazard workplaces. In doing so, he fails to mention that the Robens report, which gave rise to the Act, emphasised the importance of transferring the lessons of industrial activity and regulation to other sectors, and that they should all be covered by the same legislation. The HSW Act has, as a result, always applied to nearly all work activities, regardless of hazard, risk and size.
Second, the HSW Act and the MHSW Regulations are about managing, not eliminating, risks, and are generally framed by the concept of reasonable practicability. Of course, the avoidance of a hazard is ideal, but we live in the real world and reduction and amelioration also sit within that same hierarchy of prevention.
Finally, the HSW Act and associated regulations shifted the UK's legislative approach from prescription to goal setting, generally leaving employers - assisted by guidance - to decide how to attain those goals. What Young does not grasp is that small firms frequently want specific and prescriptive requirements - the very converse of goal-setting - so that they know exactly what they have to do. And while it is fair to say that the European Directives from 1989 onwards did herald a shift back to prescription, it is equally true that the HSE was, for the most part, successful in framing them as goal-setting regulations, backed up by more prescriptive guidance. After all, if a risk assessment finds few hazards and little risk, the action required is correspondingly simple.
Common sense and perception
Regarding "common sense" - "you know it when you see it," says Young, insisting: "We should all accept that health and safety in non-hazardous occupations is little more than common sense in action." Unfortunately, it is not. There is undoubtedly a significant role for common sense, but it varies from one person to the next - one person's common sense might be Lord Young's risk aversion. It can be influenced by pressures of work demands and resources, age and experience, and by relationships with managers and colleagues. And, in some circumstances, people can even need protecting from common sense.
Similarly simplistic is Young's assertion that "perception is reality". The perception of the public may be that employers are calling in over-zealous safety consultants who are eliminating all risks; the toll of injuries and ill health show the reality to be somewhat different. What Young should first have done was determine whether or not the perception is the reality; the problem is that he has not done this, relying too much on anecdotal comments. This ends with him recommending legislative and other changes to counter a perception, thereby allowing the reality to continue unchecked or, in some cases such as firefighter heroes, wasting everyone's time with an irrelevant law. Of course there are some instances where a perception contributes to a reality: the attitudes and fears of some teachers about school trips - despite the efforts of their unions, LA employers and central government - have led to cancelled trips in some schools; but not in many others.
Staying inside the political tent
In the interests of balance, we should note that all employers' representatives have welcomed the recommendations, as have the Institution of Occupational Safety and Health, British Safety Council, International Institute of Risk and Safety Management and Royal Society for the Prevention of Accidents. Quite why these reputable bodies should welcome a review that is so conceptually and practically flawed is puzzling.
Part of the answer lies in their seizing on the positive recommendations and ignoring the suspect ones, or hoping they will be ironed out through consultation or simply stay on the Whitehall shelf gathering dust. Part, we suspect, is merely a strategic decision to work from inside, rather than outside, of the political tent; part is relief that the report is less radical and onerous than they feared. And part of the welcome may be because the report contains "opportunities" - not just the consultants register but also, a little further down the line, a potential role in the part-privatised inspection system that will follow from the food safety recommendations.
The reaction of the HSE is less surprising but equally disappointing, with the HSE Board's chair, Judith Hackitt, describing the report as "an important milestone on the road to recovery for the reputation of real health and safety". The HSE, she said, welcomed the report, which represents "a tremendous opportunity to refocus health and safety on what it is really about - managing workplace risks". Again, we can only guess at what lies behind the statement: the attempt to combat myths and focus on the real risks, certainly, but perhaps too there is relief that the HSE has come out of the report relatively unscathed, as indeed it should.
A bringer of solutions?
Too often in this report, all roads lead back to consultants and lawyers. Of course there are rogues in both professions, but they are far more a symptom than the cause of the malaise. The reality is simple: lawyers sue companies, and the HSE and LAs prosecute companies, because a minority of companies harm their workers. As for consultants, the real problem is not that we have a host of companies doing too much, but too many companies doing too little.
Overall, Lord Young's report is not, in itself, as problematic as seemed likely at the start of the review, although, as we note, the report is probably just the start. Sadly, though, the report does nothing to reduce work-related ill health and injury. It is, to misquote Lord Young, about perception, not reality. One irony of the review is that a Government committed to deregulation and reducing red tape has come up with so many Bills and reforms in just a few months in office. No wonder the HSE welcomes the report; there is enough here to keep it going for years.
Lord Young "brings me solutions, not problems," said Margaret Thatcher when she was Prime Minister. This report, unfortunately, brings few solutions and many more problems.
Howard Fidderman is editor of Health and Safety Bulletin.
Table 1: Young recommendations' implementation "milestones" |
|||
|
Initiative |
Topic |
Departments |
2010 |
|||
Autumn |
Launch of Ministry of Justice's consultation on Lord Justice Jackson's recommendations relating to reform of civil litigation [under way] |
Compensation culture |
Ministry of Justice (MoJ) |
Autumn |
Publication of snow-clearing guidance [done] |
Compensation culture |
Transport (DT) |
October |
Launch of simplified interactive risk assessment form for offices [done] |
Low-hazard workplaces |
HSE |
October |
Roll-out of national Food Hygiene Rating Scheme by local authorities [under way] |
Combining food safety and health and safety (health and safety) inspections |
Food Standards Agency (FSA) |
October |
Launch of web-based database for local authorities to publish results of Food Hygiene Rating Scheme inspections |
Combining food/health and safety inspections |
FSA |
October |
Highlighting the existing jurisdiction of the Local Government Ombudsman (LGO) in respect of an event cancellation by local authority officials |
- |
LGO |
November |
Launch of simplified interactive risk assessment form for classrooms |
Low-hazard workplaces |
HSE |
December |
Launch of simplified interactive risk-assessment form for shops (including charity shops) |
Low-hazard workplaces |
HSE |
2011 |
|||
Early 2011 |
Launch of consultation on implementing an improved system for assessing health and safety standards for larger companies with multiple outlets |
Working with larger companies |
Business, Innovation & Skills (BIS)/HSE |
January |
Publish guidance for local authorities on combined health and safety and food safety inspections |
Combining food/health and safety inspections |
HSE and FSA |
January |
Establish a minimum standard of professional qualification for all those operating as consultants in the health and safety industry |
Raising standards |
Work and Pensions (DWP)/HSE |
January |
Establish a web-based directory of accredited health and safety consultants |
Raising standards |
DWP/HSE |
January |
Offer schools a single consent form that covers all activities a child may undertake during their time at school |
Education |
Education (DE) |
January |
Introduce revised guidance on pupil health and safety including off-site educational visits and school security |
Education |
DE |
January |
LGO to expedite complaints about event cancellation in cases of particular urgency |
Local authorities |
- |
Ongoing until June 2011 |
LGO to disseminate good practice on complaints handling to include cancellation of events |
Local authorities |
Communities and Local Government (CLG) |
January |
Consultation on the operation of Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR) |
RIDDOR |
HSE |
Spring |
Launch of consultation on a draft voluntary code of practice to replace the current Adventure Activities Licensing Authority regime |
Adventure training |
HSE (with Culture, Media and Sport and DE) |
Spring |
Launch of consultation for reform of civil justice |
Compensation culture |
MoJ |
March |
Launch of periodic checklists for use by low-risk voluntary organisations to check compliance against regulations |
Low-hazard workplaces |
HSE |
March |
Launch of consultation on consolidating current raft of health and safety legislation into a single set of accessible regulations |
Health and safety legislation |
HSE/DWP |
March |
Publication of revised guidance for police and fire officers undertaking heroic acts |
Police and fire services |
Home Office/CLG/HSE |
April |
Review of HSW Act to distinguish play and leisure activities from workplace contexts |
Education |
DE/HSE |
April |
Introduction of priority measures on Conduct Rules for claims management companies |
Compensation culture |
MoJ |
May |
Presentation to FSA Board of proposals for opening delivery of food safety inspections to accredited certification bodies |
Combining food/health and safety inspections |
FSA |
June |
HSE to produce clear, separate guidance under the code of practice for small and medium-sized businesses engaged in lower-risk activities |
Health and safety legislation |
DWP/HSE |
2012 |
|||
April |
Introduce a system to allow LGO to award citizens financial compensation where local authority officials have made an incorrect decision on the grounds of health and safety and it is not possible to reinstate an event |
Local authorities |
CLG |
April |
Aim to introduce extended Road Traffic Accident Scheme to include personal injury and low-value clinical negligence claims (subject to consultation) as part of wider civil justice reforms |
Compensation culture |
MoJ |
April |
Review of voluntary display of food hygiene ratings by food businesses covered by the national Food Hygiene Rating Scheme |
Combining food/health and safety inspections |
FSA |
Source: Lord Young (2010), "Common sense. Common safety". |
|||
