Good riddance to RIDDOR?
Do new HSC proposals herald the end of RIDDOR as we know it, asks Howard Fidderman?
The coming years may see the most important overhaul of RIDDOR - the Regulations that specify which injuries and diseases employers have to report - since the requirements were introduced in 1985. Proposals set out in an HSC discussion document on the future of the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR)1 would, if implemented, introduce a duty to report and record all work-related absence that lasts for more than three days, whether the cause is injury or ill health. This single category would replace the current duties to report major injuries and over-three-day injuries. A separate, but probably linked, proposal would see the scrapping of the duty to report occupational diseases.
The current duty to report deaths would remain unchanged, but there would be significant changes to the duties to report some dangerous occurrences. The HSC is also considering whether to make "at work work-related" road traffic incidents reportable under RIDDOR.
The HSC's chair, Bill Callaghan, claims that there is "acceptance and even enthusiasm among stakeholders for a change" to RIDDOR. He acknowledges that RIDDOR is "one of the most important sources of information for the enforcing authorities and guides some, but not all, regulatory activity". But he believes that the "case has yet to be made as to whether RIDDOR is really the best means of gathering information on occupational health and for the purposes of health and safety statistics".
Review is fundamental
In addition to looking at changes to what employers have to report, the HSE is also interested in ideas about:
how the reporting system might encourage the sharing of experiences and lessons;
strengthening the link between the RIDDOR duties to inform the enforcing authorities of incidents and to keep records, and the requirements in the Management of Health and Safety at Work Regulations 1999 (MHSW) on internal monitoring, recording and investigation of incidents; and
enforcing RIDDOR more effectively.
There is, however, nothing in the discussion document to indicate how the HSC might go about realising these goals. Instead it concentrates on the changes to the reporting duties, where it sets out four proposals for change, even though it insists these are not formal and are mere starting points for discussion (see box 1). But given this review has been at least five years in the coming - the HSC and government made a commitment to a fundamental review of RIDDOR in the 2000 Revitalising health and safety strategy (see Employers face major health and safety at work shake-up) - it is reasonable to assume that the HSC has not written this document on the back of an envelope.
The only option that appears to be ruled out is dispensing with statute in this area: "Voluntary reporting arrangements have sometimes proved successful," notes the HSC, "but given the potential seriousness of incidents, and public interest, we believe that the enforcing authorities should continue to require notification and reporting in order to maintain public and stakeholder confidence in the reporting system."
The point of RIDDOR
RIDDOR exists to provide information to help the HSC/E carry out their duties, employers to manage health and safety, and also to satisfy EC legal obligations.
The first objective of RIDDOR, advises the HSC, is to provide information to guide the enforcing authorities' regulatory activities. Indeed, "the fundamental principle underlying the reporting system must be that [it] guides enforcement action." The authorities use the information to:
identify incidents that may need investigation;
inform the development of strategies and work plans so that interventions can target industries, occupations and circumstances where there are high numbers of incidents and/or a higher level of risk;
track trends and progress towards the Revitalising and Public Service Agreement targets for reducing work-related injury and ill health (see Upbeat HSC gives itself pat on the back);
provide the basis for the statistical publications and information; and
inform HSE guidance.
But, adds the HSC, "there is a question over whether RIDDOR is really the best means of gathering information for the purposes of health and safety statistics, or whether we could rely on other mechanisms to collect this information." In this respect, the pilot Workplace Health and Safety Survey (WHASS) will help, but it is a supplement, not a replacement for data such as RIDDOR and other sources of data.
Almost as an afterthought, the HSC adds that: "There is also the issue of maintaining a statutory requirement to report incidents under criminal law and penalties for non-compliance." But the HSC believes that the offence should apply "only where necessary, and not where merely convenient for the enforcing authorities or where the data can reasonably be obtained from other non-statutory sources." As such, RIDDOR may be a suitable candidate to trial the effectiveness of alternative penalties, such as administrative fines or fixed penalty notices that were called for in the Hampton report (see Hampton and the regulators).
Satisfying employers and the law
A further objective of RIDDOR is to ensure that dutyholders are aware of failures and the need to act upon them to improve their health and safety management systems. The MHSW Regulations 1999 require employers to have arrangements to monitor the effectiveness of active (monitoring compliance) and reactive (monitoring accidents) systems. Many organisations use RIDDOR statistics to help with the latter, and the HSC wants to explore whether it can make RIDDOR more effective in this area. In particular, it wonders whether it should establish a more explicit link with the MHSW Regulations, "because such a link could influence dutyholders' behaviour with regard to their internal monitoring, recording and investigation of incidents". Against this, organisations "need to recognise that RIDDOR alone is not a reliable measure of health and safety performance". In particular, to what extent can, or should, RIDDOR be used to drive dutyholder behaviour?
Finally, RIDDOR meets legal obligations under domestic and European law. For example, a notification of a death under RIDDOR triggers a coroner's inquest. The Framework Directive requires lists of over-three-day injuries and the reporting of incidents to the competent authority. The UK is also committed to providing national statistics to Eurostat. And, although there are no current obligations under international law, should the UK sign the 1981 ILO occupational safety and health convention, recording and notification issues would arise.
The trouble with RIDDOR
Given these objectives, there are significant problems with RIDDOR, not least the level of under-reporting. Employers report about 40% of the non-fatal injuries that they should under RIDDOR; the self-employed report fewer than 5%. (There is no reporting problem with fatal injuries.) The situation is worse for occupational diseases, while reporting of dangerous occurrences, other than on the railways and in the extractive and major hazards sectors, is minimal. One solution - increasing compliance - would, the HSC insists, necessitate "moving limited and finite resources away from other important work".
Under-reporting leaves the enforcing authorities with an "intelligence gap" that can only be partially filled by surveys and following up reports. In addition to under-reporting, there are other shortcomings and genuine misunderstandings associated with RIDDOR:
significant problems around the extent, scope and validity of the occupational health data (see below);
the list of dangerous occurrences is based on too limited a number of industries;
employers are sometimes unclear about what to report. For example, whether, and how, they should report a major injury that does not result in more than three days off work, or whether the day of an accident counts towards the "over-three-days"; and
RIDDOR reports "do not provide the right kind of detail for the data to be of use in particular circumstances". The HSC believes, however, that this could be rectified by developing different forms, or by adapting current forms, to provide more information.
Occupational ill health, states the HSC, "is so under-reported via RIDDOR that it begs the question whether we should persevere with ill-health reporting under RIDDOR given that there are other, more effective sources for national occupational ill-health information and statistics" (see box 4).
The main weaknesses are:
the level of under-reporting, which is caused by the reporting mechanism itself and the strict criteria that need to be met for a case to be reported;
the limited scope of reporting due to restrictions on the types of diseases and work activities that are included in the Regulations;
the difficulty in establishing definite causal links between cases of ill health and work, particularly the role of non-occupational and psychosocial factors; and
the reporting trigger, which is a statement by a doctor to an employer that an employee is suffering from a prescribed disease. The trigger relies on doctors making a link between disease and occupation, often in the absence of information on the employee's work. Further, doctors have no legal duty to report the case to an employer or provide a specific diagnosis when certifying sickness to an employer.
These shortcomings have already led the HSE to obtain most of its data elsewhere. But, says the HSC, these do not provide the enforcing authorities with the information they need to guide their enforcement activities and cannot replace RIDDOR's "immediacy and specificity".
The HSC believes that some information can be gleamed from recent initiatives, such as the Workplace Health Direct scheme for SMEs and a construction health advice scheme, but these are pilots and will not generate data for some time. "There is also a wider question as to whether information on occupational ill health provided under RIDDOR could be replaced by working in closer partnership with other government departments such as the Department for Work and Pensions and the Department of Health.
Scrap reporting of diseases
Given a general acceptance that RIDDOR is only of "limited use" in terms of occupational ill health, the HSC states that: "It is doubtful whether RIDDOR is, or can ever become, the main 'driver' of investigations by the regulators of cases of occupational ill health."
Removing the requirement to report occupational diseases under RIDDOR would:
allow the enforcing authorities to simplify the Regulations and guidance by removing the detailed schedule and guidance. It would also be "deregulatory" [which the HSC sees as a benefit];
offer a simpler system for dutyholders; and
"could act as a driver to encourage a wider review of how occupational ill-health data should be collected and used".
The potential downside, however, is that:
stakeholders may lose confidence in a reporting system almost exclusively devoted to safety incidents;
there might be difficulties identifying work-related upper-limb disorders that may be the result of cumulative exposure rather than as a result of a clearly identifiable accident;
the enforcing authorities would lose a source of "real time" intelligence on occupational ill health and be unable to carry out immediate enforcement action (for example, in cases of occupational dermatitis); and
there is a risk of potential challenges under the Human Rights Act 1998.
An all-encompassing injury?
In a proposal that will probably be linked to the scrapping of the ill-health duty, the HSC proposes to replace the current duty to notify and report major injuries (and over-three-day injuries, by implication) with a requirement to report and record all work-related over-three-day absences, whether they are injuries, conditions or diseases.
The HSC believes that:
dutyholders would find it easier to report incidents, as the only criteria they would have to consider was whether the injured person was unable to carry out the full range of their normal duties for more than three days (after the day of the injury);
the new duty would comply with the Framework Directive; and
it would make it easier for the enforcing authorities to develop a simpler and more presentable PSA target, ie one that used fatalities and injuries leading to more than three days' absence from work.
The potential disadvantages are that:
dutyholders may find it difficult to distinguish between absences due to minor illnesses such as colds and work-related sickness absence "and may make reports to the enforcing authorities 'just in case'" [this may display a naïve faith in the enthusiasm of employers, who currently fail to report 60% of reportable injuries];
some reportable major injuries would no longer be reportable, for example acute illness or unconsciousness or serious incidents where the injured person recovered and returned to work within three days;
there would be no continuity with the current PSA target, which relates to fatalities and "major injuries";
the current statistical series and trends would be affected; and
there would be greater reliance on the LFS to indicate trends and targets.
Dangerous occurrences
The requirement to report specified dangerous occurrences provides information on incidents that have significant potential to cause serious injuries, but that happen infrequently. The incidents are specified in five lists covering mines, quarries, railways, offshore and "general". The problem, believes the HSC, is that these lists "are for historical reasons, detailed, prescriptive and industry or sector-specific, and do not include what might be thought of as equally important or significant 'near miss' incidents. As a result, the overall level of reported dangerous occurrences tends to be misleading in that it only reflects reporting practice in a small number of industries and sectors".
While dangerous occurrences in major hazard sites are generally well reported, the reporting of those in the "general" category is "patchy", although the HSE admits it has no measure of just how under-reported they are. Nevertheless, the information is important, particularly for the "permissioning" regimes.
The HSE is developing a new PSA major hazards target to reduce major hazard precursor incidents. The measure uses RIDDOR dangerous occurrences, but the HSC believes that the current review offers "an opportunity to consider whether to identify and develop a small number of dangerous occurrences as meaningful measures for indicating performance in controlling major hazards more inclusively, such as loss of containment". These would cover onshore major hazard industries (chemical and oil refining, mining, explosives, gas distribution, hazardous pipelines and biological agents).
Dangerous occurrence changes
Although there may be good reasons to continue reporting dangerous occurrences in some industries, the HSC believes there are also good reasons for reviewing the list "and to ask whether a more goal setting, rather than prescriptive, approach to dangerous occurrences would be more appropriate, including, for example, a more generic list of dangerous occurrences".
The HSE believes there may also be scope for reducing the number of listed dangerous occurrences by introducing voluntary arrangements to learn from an incident. It cites the web-based Safety Alert Data and Information Exchange (SADIE) system developed by the Steel Construction Institute, which it believes is a simple and effective way of sharing information and safety lessons from all types of incident, including dangerous occurrences. "One possible objective for the RIDDOR review could be to consider developing a wider system for sharing information and safety lessons from a range of accidents and incidents."
The HSC believes that the benefits of such an approach are that it would:
assist dutyholders by reducing the costs of having to notify and report specific dangerous occurrences to the enforcing authorities;
allow the enforcing authorities to move resources to other priorities; and
allow more dangerous occurrences to be reported than currently (for example, by the introduction of a more goal-setting requirement).
Against this:
the removal of the requirement might result in dutyholders reducing their investigation and prevention of dangerous occurrences;
changes to the list of dangerous occurrences could damage the HSE's capacity to improve its regulation of major hazards, and may lead to setbacks, especially offshore; and
replacement of the statutory requirement with specific provisions might complicate rather than simplify reporting requirements for some dutyholders.
Lukewarm on the roads
The HSC's fourth and final proposal is to consider whether or not to make "at work work-related traffic incidents" reportable under RIDDOR. The Dykes Report on managing occupational road risk recommended in November 2001 that the next review of RIDDOR should consider how "at work" road traffic incidents involving fatalities, major and over three-day injuries should be reported to the enforcing authorities (see Managers face occupational road risk test). The HSE accepted this recommendation, albeit "with qualifications" (see HSC heads for the highway). The Work and Pensions Select Committee made a similar recommendation in its July 2004 report on the HSC/E (see Education or enforcement: MPs examine developing strategy).
The HSC appears lukewarm on this proposal. It points out that existing policy is based on the premise that it does not generally seek to apply HSW legislation where there is more specific and detailed law that adequately protects public and worker safety (the Road Traffic Acts, etc). The police will, in most cases, take the lead in any investigation and the "HSE would only make limited use of this information to target enforcement action".
Bringing work-related RTAs within RIDDOR would, accepts the HSE:
encourage dutyholders to manage work-related road safety as part of their overall health and safety management system;
allow the enforcing authorities to build a statistical database on the extent of incidents where there had been a safety management failure; and
allow the enforcing authorities to target investigations.
Against this:
"notification and reporting of all work-related road safety incidents would add an unnecessary burden on business" [and presumably would therefore be ruled out at ministerial level as it would impinge on the Hampton report recommendations and those of the Better Regulation Task Force];
there could be a "sizable increase" in the number of reports the enforcing authorities would have to handle, with "potentially serious" resource implications; and
the HSE might find itself diverted from the HSC's current strategy priorities "to the detriment of its strategic programmes".
Earlier changes?
The HSC believes that, in the short to medium term, it could:
remove the requirement to report occupational diseases;
overhaul the dangerous occurrences requirements to make them more goal setting;
strengthen the links between RIDDOR and the MHSW Regulations 1999; and
work with other government departments and public bodies like the NHS.
Although these proposals would not cause major disruption to the current PSA and Revitalising targets or statistical series, the HSC warns that there could be important resource implications, particularly from any new arrangements to collect information on occupational diseases or for a new HSE-backed system to share information or safety lessons learned from dangerous occurrences.
These medium-term proposals generally make sense, although scrapping a duty to report occupational diseases (without a replacement) might seem a strange move when the government and the HSC are shifting the emphasis of the HSE's work from safety to health.
There also needs to be further discussion of the implications of under-reporting. First, the HSC's proposals do nothing to increase underlying levels of reporting; instead they respond by proposing dropping the most under-reported events. Second, what are the implications of under-reporting in practice? If the HSE knows that employers under-report injuries by about 60%, there is nothing to stop it factoring that into a calculation of the overall incidence (as indeed it sometimes does).
The RIDDOR provisions on occupational health and dangerous occurrences, however, are useless as overall statistical indicators and in need of either scrapping or an overhaul. Strengthening the links between RIDDOR and the MHSW Regulations should have been done a long time ago, and the need to work with other departments is so obvious that it is worrying that the HSC still needs to remind the government of its importance.
Political expediency
Some of the other - presumably longer-term - proposals are more problematic. In particular, it is difficult to avoid the feeling that the merging of major injuries, over-three-day injuries and diseases into a single category of "over-three-day absence" is driven by the government's desire to reduce absence from work rather than by a workplace health and safety imperative. All that would matter in terms of the proposed RIDDOR notification would be whether workers are off sick because of their job, not whether they are suffering a reportable disease or a broken bone. If the HSC proposal becomes law, we will be in the ridiculous situation of a construction employer not having to report an incident in which a worker was struck unconscious (providing the worker returned to work within four days), but would have to report a strain that left a worker off sick for three days. People recover at different rates and, given the improvements in medical techniques and the shortening of hospital stays, the time spent off work is not always the best indicator of workplace failures.
It is true that the current distinction between the two different types of non-fatal injury, and increasingly between injuries and illnesses, can be confusing. There is also the valid point that the severity of the injury is often a matter of chance, rather than the extent of the failure. In that sense, it is disappointing that after five years, in what is supposed to be a wide-ranging and open-minded review, the HSC did not at least offer, as an alternative, improvements to the current definitions. Nor are RIDDOR or the proposed changes helpful to many companies with advanced health and safety systems that rarely have a RIDDOR event and instead deal in criteria such as lost-time accidents. This may not matter to the RIDDOR statistics, but it is relevant to the HSE's protestations about links to management systems.
Moving targets?
Finally - and arguably too cynically -we have to return to the issue of targets. Revitalising set injury and ill-health reduction targets in 2000 that had to be achieved for 2004/05 and 2009/10. We have now passed the first date and, although no word is forthcoming from the HSE, as of last year there had been little or nor progress towards any of these targets (see Revitalising targets for years on: still too soon to measure). In short, to make the halfway targets, all the progress will need to have been made in the 12 months to April 2005.
One of the targets concerned fatal and major injuries. If major injuries are merged into an "over-three-day absence" category, how will the HSC compare like with like when deciding whether this target has been reached? The HSE is still working out baselines for some targets; how will changing the definitions help this? Either it will have to use information gleaned from an absence report to judge whether the cause would have constituted a major injury under the old regime, or it will have to wait until 2010 to make the changes. As all politicians know, if you can't reach a target, you shift the goalposts.
1 "The review of the Reporting of Injuries, Diseases and Dangerous Occurrences Regulation 1995", DDE22, April 2005, HSE Books or www.hse.gov.uk/consult/live.htm. Comments should reach Maureen Disson by 30 June at HSE, Policy Group, 2 Southwark Bridge, London SE1 9HS, tel: 020 7717 6399, email riddor.dd@hse.gsi.gov.uk.
Howard Fidderman is a freelance journalist and editor of HSB.
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The HSE lists seven reasons for the RIDDOR review: to meet the commitment in Revitalising health and safety;
to meet the government's response to a recommendation of the report on the HSC/E from the Environment, Transport and Regional Affairs Select Committee (see Education or enforcement: MPs examine developing strategy);
to ensure that the reporting system is in line with the HSC's Strategy for workplace health and safety in Great Britain to 2010 and beyond (see "All dressed up", but where will the HSC's strategy go?);
to meet the HSC's "commitment to examine the impact and effectiveness of health and safety regulation in line with its ongoing programme of rationalising and modernising health and safety legislation";
"to ensure that the information on incidents that is required by statute, with criminal sanctions for failure to provide it, is kept to the minimum necessary for legitimate regulatory purposes";
to ensure that businesses can achieve compliance with the Regulations without undue administrative costs, while continuing to improve standards of health and safety; and
to ensure that the reporting system reflects the "merger" of the HSE's work to regulate health and safety in the rail industry with the Office of Rail Regulation.
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The review aims to look at three issues in the context of the HSC's Strategy for workplace health and safety in Great Britain to 2010 and beyond (see "All dressed up", but where will the HSC's strategy go?): the needs of the enforcing authorities (the HSE and local authorities) for the information that is currently collected;
the need for basic information for duty holders to monitor health and safety performance in the workplace; and
issues around occupational ill health.
In addition, the review aims to: investigate the reasons why employers fail to report RIDDOR incidents;
look at whether the HSC can take a more "joined-up" approach, working with others in the public sector, to capture reports and information and, where possible, reduce bureaucracy and minimise the regulatory burden on employers; and
develop a system that drives improvements in reporting behaviour and standards of health and safety management.
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The HSC would like the views of organisations and individuals on 12 questions. 1. What are your views on using RIDDOR to trial alternative penalties such as administrative fines or fixed penalty notices? 2. Should a more explicit link be made between the reporting and recording requirements of RIDDOR and the requirements of the Management of Health and Safety at Work Regulations 1999? 3. How can RIDDOR's reporting and recording requirements be used to drive or influence dutyholder behaviour? 4. Should the collection of statistical information on injuries from accidents arising from work and on occupational ill health be disconnected from other RIDDOR objectives? 5. Do you agree with the key objectives for any future revised notification and reporting system, ie to provide information that guides the enforcing authorities' regulatory activities; and to meet relevant specific legal obligations? Or should the HSC prioritise the objectives in another way? 6. What are your views on the removal of the current requirement on dutyholders to report occupational diseases? 7. What are your views on removing the current reporting requirement on dutyholders to notify and report some dangerous occurrences? 8. Should we adopt a more goal-setting, rather than prescriptive, approach to dangerous occurrences, for example by developing a more generic list of dangerous occurrences? 9. What are your views on developing a wider system for sharing information and safety lessons from a range of accidents and incidents? 10. What are your views on removing the current reporting requirement on dutyholders to notify and report major injuries, replacing it with a requirement to report and record all work-related over-three-day absences, regardless of whether they are caused by injury or ill health? 11. What are your views on making "at work work-related" road traffic incidents reportable under RIDDOR? 12. What other proposals or areas should
the HSC/E examine further? |
