HSE consults on RIDDOR

Howard Fidderman believes that further Health and Safety Executive (HSE) tinkering with duties to report injuries, diseases and dangerous occurrences avoids the bigger picture.

Consultation will close on 28 October 2013 on changes to the health and safety incidents that the law requires employers to report to the HSE. The HSE's proposals (external website) mean that employers and persons in control of work premises will no longer have to report:

• occupational diseases, other than those resulting from a work-related exposure to a biological agent;
• non-fatal accidents to people not at work; and
• dangerous occurrences other than those related to higher-risk sectors or activities.

In addition, the HSE will simplify and reduce the list of injuries that qualify as "major", while self-employed persons will no longer have to report injuries or illnesses that they suffer. The proposals will reduce the number of RIDDOR reports made to the enforcing authorities from approximately 177,000 to 107,000 a year, although it should be noted that around six in seven of the lost reports involve injuries to members of the public, less than half of which tend to be actually "reportable" under RIDDOR (see table 1). The reduction is, however, on top of an estimated 27,000 reports that will be lost as a result of the replacement on 6 April of the duty to report "over-three-day" injuries with "over-seven-day" injuries. The HSE stresses that its proposals do "not represent any fundamental change to established HSE policy or strategic objectives". As such, it will not consider the potential for widening the scope of RIDDOR to areas such as work-related road transport accidents. Nor will the proposals affect the current, predominantly online arrangements for reporting under RIDDOR.

Low levels of reporting under RIDDOR

Undoubtedly, RIDDOR is in need of improvement; the disagreement comes over how. The HSE attributes low levels of reporting under RIDDOR to:

• the complexity of the requirements;
• fears of over-zealous enforcement; and
• confusion as to whether or not reports through other systems discharge the RIDDOR reporting duty.

This contributes to the poor quality and unreliability of some RIDDOR data, particularly for occupational diseases, which are frequently received too late to trigger an investigation and are too incomplete to allow statistical analysis.

In 2005, the HSE conducted a fundamental review of RIDDOR, which found agreement among stakeholders that there were "serious flaws" in RIDDOR. The HSC (which was subsequently replaced by the HSE Board) agreed in 2006 that radical changes were merited but, before these could be introduced, there must be confidence that other information and data sources were available and sufficient, and that the reporting and recording requirements of RIDDOR should be communicated clearly to dutyholders.

The HSC, adds the new HSE consultative document, also recognised that "SMEs' compliance with the law was not facilitated by their belief that their reports led to an increased enforcement response, which those who did not report avoided. This was seen as a particular issue in the local authority [LA]-enforced sector, where SMEs believed there was an overreaction by regulators to minor injuries."

Despite the shortcomings, the HSC still, according to the HSE, "concluded that, having thoroughly examined needs for information, stakeholder views and potential change options, there was no clear appetite for radical change at that time and that, despite RIDDOR's flaws, the costs and risks of change outweighed the benefits".

Four years later, Lord Young's October 2010 report, "Common sense. Common safety", recommended the HSE re-examine RIDDOR to determine whether or not it is the best approach to providing an accurate national picture of workplace accidents. Young also recommended the new over-seven-day injury category. Then, in November 2011, the Löfstedt report, "Reclaiming health and safety for all: An independent review of health and safety legislation", concluded that RIDDOR's categories of reportable accident were unnecessarily complicated and time-consuming for employers. Löfstedt therefore recommended the HSE amend RIDDOR and its guidance to provide clarity on compliance for businesses by reducing ambiguity over reporting requirements, particularly in relation to members of the public. The Government required completion by October 2013.

The effects of the change

The HSE's proposed version of RIDDOR will require employers and persons in control of work premises to report:

• all deaths to workers and people not at work that arise out of, or are connected to, a work activity, although railway suicides - around 250 a year - will no longer be reportable because the Office of Rail Regulation receives notifications from the British Transport Police that it believes are sufficient to identify those cases where there may be implications for a railway undertaking's risk management;
• all major injuries to people at work, although what constitutes a major injury will be simplified;
• over-seven-day injuries to people at work (this change was introduced on 6 April);
• dangerous occurrences within major hazard injury sectors or specified higher-risk activities, or sectors such as construction (ie all other dangerous occurrences will no longer be reportable);
• diseases that result from a work-related exposure to a biological agent (ie they will no longer have to report any other occupational diseases); and
• domestic gas events.

Simplifying injury reporting

There will be no change to the requirement to notify a major injury to the enforcing authority by the "quickest practical means" and to submit a written report within 10 days. The HSE is, however, proposing to simplify the list of major injuries so it is aligned with the criteria it uses to select which incidents to investigate (see box 1).

The changes will mean that some currently reportable gas incidents will fall outside of RIDDOR. Therefore, the HSE proposes that gas conveyors and suppliers or the emergency service provider will have to report deaths, loss of consciousness or a person attending hospital for treatment arising out of the incident.

The HSE also wants to remove the requirement to report non-fatal injuries to people who are not at work. Currently, dutyholders must report an injury where a person is taken from the site of the accident to hospital for treatment. Experience, argues the HSE, shows anomalies and confusion around what this duty entails, for example when a person is taken to hospital as a precautionary measure. Furthermore, the HSE believes it will continue to obtain information on "very serious injuries" from bodies such as the police and emergency services.

The "public" includes retail customers, leisure facility users, residential and nursing-home users, students, schoolchildren and charity volunteers. In 2009/10, the HSE investigated 228 of the 15,106 reports it received of non-fatal injuries to people not at work (2%) and prosecuted 15 cases. There are no figures for LAs, although the HSE believes that "all LAs probably use RIDDOR data to some extent." The Office for Rail Regulation investigates each year around 1% of the 3,000 RIDDOR reports involving passengers and the public.

Box 1: Major injury changes The HSE proposes 10 types of major injury that comprise any: fracture other than to fingers, thumbs or toes; amputation; crush injuries leading to internal organ damage; head injuries that result in a loss of consciousness; burns or scalds covering more than 10% of the body's surface area; permanent blinding in one or both eyes; degree of scalping; asphyxiation from whatever cause; injury arising from working in a confined space resulting in hypothermia, heat-induced illness, requiring resuscitation or admittance to hospital for more than 24 hours; and diagnosed illness requiring medical treatment that is reliably attributable to a work-related exposure to a biological agent or its toxins, or infected material. (The HSE has included this in the criteria because it is an EU Directive requirement.)

Occupational diseases to go

The HSE also wants to remove the requirement to report occupational diseases except where they result from a work-related exposure to a biological agent. Currently, employers must make a report if they receive a written statement that an employee is suffering from a disease that is listed in a schedule to RIDDOR and is engaged in a type of work that is listed for that disease. Offshore dutyholders must additionally report 25 diseases, which include non-work-related sickness that could spread through the platform, for example mumps.

Although estimates based on the Labour Force Survey indicate 1.1 million new cases a year of work-related ill health, employers submit only around 1,600 RIDDOR reports of diseases a year to the HSE and 200 to LAs (which, as the HSE points out, equates to less than one report for each LA). More than half (850) of the 1,600 concern hand-arm vibration syndrome, while 240 are dermatitis. The HSE investigates 450 (29%) of these cases.

Reporting levels, the HSE acknowledges, are "extremely low" because:

• the dual conditions for reporting mean the duty is not well understood by employers;
• the schedule provides "only medical names, with which most employers will not be familiar";
• long-latency diseases will not develop until the sufferer has changed jobs or retired (in which case there is no need to report as the victim is no longer in that type of job); and
• employees have to give a written diagnosis from their doctor to their employer or allow a company doctor to send the employer the diagnosis.

The HSE therefore relies on other data for intelligence and targeting its activities; the five years since the HSC asked for further reassurance on alternative sources of ill-health information, claims the HSE, have meant that "greater reliance can be placed on the data generated by these surveys and schemes as a good source for intelligence and targeting purposes".

Dangerous occurrences limited

RIDDOR requires certain dangerous occurrences that do not result in injuries to be notified immediately because they can provide the HSE with information about precursor events that may lead to injury or other loss. The number of events reported is low - around 7,500 - indicating under-reporting in certain sectors and activities. The HSE therefore proposes restricting the requirement to report dangerous occurrences to the major hazards industry sectors and other specified higher-risk sectors and activities, for example construction.

Currently, there are 21 types of dangerous occurrences that, in theory, apply to "any workplace", although these include "train collision" and pipelines. There are a further four specific sectors - mines, quarries, railways and offshore - where there are obligations to report certain dangerous occurrences. Of the total of 25, the HSE is proposing to "retain but simplify" 19, remove five and retain one (an EU requirement on escape of biological agents). The justifications for simplification cover duplication of other reporting requirements, low numbers of reports and "confusion".

Another self-employed exemption

The RIDDOR consultation overlaps with a separate consultation on proposals to exempt from health and safety legislation those self-employed workers who do not expose others to risks and do not work in a prescribed higher-risk occupation or sector. The HSE wants to align RIDDOR with this exemption and so proposes that self-employed workers will no longer have to report injuries, diseases or dangerous occurrences to themselves, although they will have to make a report if their work results in a reportable injury to another person.

The HSE told Health and Safety Bulletin (HSB): "Factoring an approximate 27% expected reduction since over-seven-day reporting was introduced, the ‘current' baseline becomes about 1,820 non-fatal self-employed reports made. Under the same methodology used for employees, this would reduce to around 1,700, meaning a reduction of about 120 incidents no longer needing to be reported."

A regrettable reflection of reality

The first point to note about the HSE's consultative document is that it is yet another tinkering with RIDDOR, when what is needed is a fundamental review. Lord Young said as much when he recommended that the HSE re-examine RIDDOR to determine whether or not it is the best approach to "providing an accurate picture of workplace accidents". Löfstedt endorsed this recommendation when he noted "a more fundamental review [of RIDDOR] is needed", and urged the HSE to complete it as soon as possible. The Government accepted all of the RIDDOR recommendations in both reports. When we asked the HSE about a fundamental review, however, we were told: "Beyond the actions arising from the ongoing consultation, no further review of RIDDOR is currently planned." While it is true that the words of Young and Löfstedt afforded the Government and the HSE some "wriggle room", it is difficult to see how the proposals tackle their wider concerns about RIDDOR. It should, however, be acknowledged that the changes proposed in the consultative document do address most of the specific points made by both men.

The consultative document also implicitly recognises the political and resourcing reality that the HSE is now facing. Crudely put, and this is HSB's paraphrasing, the HSE lacks the resources to do anything with some of the information it is requesting from employers, or to enforce where there is non-compliance, so it follows that it might as well withdraw some of the requirements altogether, particularly when the Government is so set on reducing employers' "burdens". The HSE rejects any enforcement effect from its proposals, noting that as it investigates only 3.5% of reported injuries to workers, "it seems unlikely that the perception of the threat of a follow-up visit by HSE would be significantly altered."

An HSE-centric initiative

Aside from the subliminal message this sends out - because employers are failing to comply with their duties, the HSE proposes reducing those duties - it is worth noting that this is also an HSE-centric justification. This consultative document is all about providing the HSE with the information it needs to carry out its (reducing) enforcement initiatives and not about what is best for employers and employees. These, for example, are the HSE's "aims" underlying the RIDDOR changes:

• to retain the supply of useful information;
• to facilitate improved reporting;
• to ensure businesses are not required to provide information that is not used or can be better obtained from other sources; and
• overall, to provide a reporting mechanism fitted to the HSE's current and anticipated needs and that is proportionate in its demands on businesses.

Employers are already grappling with the change from over-three-day injuries to over-seven-day injuries. They now have to understand changes in major injury definitions that will reduce the number of major injuries by just 3,300 reports but add 1,500 of these reports into the over-seven-day category. On top of this, they must still record the incidents, including over-three-day injuries.

The HSE rejects the fears - similarly expressed during the HSC's 2005 discussion and for the over-seven-day change - that "removing a reporting requirement would also remove a driver for internal investigation and improvement." The HSE insists that focus groups point to more important drivers such as parent companies and insurance companies. These fears may be compounded, however, if the HSE withdraws the Approved Code of Practice to the Management of Health and Safety Regulations 1999, which is the main HSE text to address these drivers in any detail.

HSB's final reservation concerns the possibility that the HSE's proposals will inadvertently send out misleading messages, particularly that it is downgrading occupational diseases (and at a time when the Government is doing its best to ignore the "health" in "health and safety"). And while the removal of reporting non-fatal injuries to members of the public sounds reasonable enough in the consultative document, what message does this send to employers about their s.3(1) duty to ensure their undertakings do not expose non-employees to risks? Ours is a service economy that involves interaction between people at work and people not at work; we need only look at the numbers of the public injured from waste and recycling activities to see the problems this removal could bring. Remember too, that whether an incident produces a fatal or non-fatal injury, or no injury at all, is often a matter of chance.

Conversely, the importance of these changes should not be overstated: there is currently, as the HSE acknowledges, little resulting enforcement and significant under-reporting; while there will be no change to the former, under-reporting will, at least in statistical if not meaningful terms, decrease. The biggest disappointment here is that the HSE has missed an opportunity even to consider fundamental changes to how, what and why employers report work-related incidents.

Box 2: Why report? The HSE believes recording and reporting injuries, diseases and dangerous occurrences ("incidents" for the purposes of this feature) can "assist businesses with the effective management of their health and safety risks". These benefits arise through identifying the nature and cause of incidents and ill health within an organisation, and by "raising the profile of certain serious issues as matters which must be reported to the regulator, thereby acting as a behavioural driver for improvement and vigilance". For regulators, the information contained in RIDDOR reports facilitates: urgent regulatory responses such as investigations; planning and targeting of regulatory interventions; and collation of statistics, which helps identify trends and progress, inform guidance and fulfil legal duties to supply national data, including to the EU. The HSE argues that its proposed changes will not interfere with these benefits while "removing reporting requirements where the information is not put to significant practical use by regulators, and/or can be better obtained from other sources".

Box 3: Each lost report saves employers £15 The HSE's Impact Assessment (IA) for its proposals looks in some detail at the likely effects of the reporting changes. It bases its 10-year projections of RIDDOR reports on an annual average for the three years to 2010/11 inclusive because, the IA acknowledges, it is difficult to predict trends. The HSE anticipates the current 176,800 RIDDOR reports falling to 106,600, although it is worth reiterating the qualification of footnote 2 in table 1. Around 49,000 of the lost reports involve those submitted to the HSE and 21,000 to LAs. The HSE estimates familiarisation costs to businesses of £2.4 million and costs to the HSE of facilitating the change of £90,000. It does not anticipate there will be any significant impact on employers' management of health and safety, and no "significant negative impact" on the HSE's operational processes. There will be benefits from the reduced number of RIDDOR reports of £1.8 million per year (with businesses saving £960,000 and government £760,000). The net benefit to businesses over the 10-year appraisal period is £5.9 million. There is, however, a "risk that if the compliance rate with RIDDOR increases as a result of the proposed changes and simplifications, then the costs savings will reduce". The IA estimates a RIDDOR report takes 37 minutes of a manager's time. This comprises 10 minutes to fill in the accident book, 10 minutes to gather the required information, 15 minutes to fill in the e-form and two minutes to print and file the form. The HSE has increased the time taken to fill in the e-form by five minutes from the estimate it used during the over-seven-day consultation. The HSE assumes that the form will be submitted by a production manager at a full economic cost of £31 per hour, which works out at £20 for each RIDDOR report. Employers must still, however, record an accident that does not require reporting, which takes 10 minutes at a cost of £5. The saving for each report not submitted because of the changes would therefore be £15.

Table 1: The lost RIDDOR reports (per year)
RIDDOR type	Existing reports	Proposed (estimates)
Major	26,300	23,0001
Over-seven-day	75,000	76,5001
Member of the public	63,0002	0
Dangerous occurrence	7,600	4,000
Disease	1,800	0
Gas	3,100	3,100
All reports	176,800	106,600
1. Of the estimated reduction in major injuries, some will still be "reportable" as over-seven-day injuries, hence the apparent increase in the over-seven-day total. The "existing" over-seven-day figure of 75,000 is an estimated reduction from the over-three-day figures, since the "actual" over-seven-day figure is not yet known because the change only occurred on 6 April 2012. 2. Of the 63,000 reported non-fatal injuries to non-workers (members of the public), around 23,500 were deemed "reportable" under the technical definition of RIDDOR. The remaining 39,300 were considered "not-reportable", although the notifier still made the report. Source: Supplied to HSB by the HSE.