MPs call HSE to account once again
Howard Fidderman looks at another select committee report on the HSE.
On this page:
One year
on
Prosecutions decline is not "insignificant"
A dutiful wait
Ill-health
shortcomings
Engaging workers
Work
and pensions committee conclusions and
recommendations
Introduction
The HSE going forward
Occupational health
Prosecutions and
enforcement
Worker
engagement
Nuclear
directorate.
In July 2008, the Government ignored or cursorily dismissed nearly all of the more challenging of the 63 recommendations made by the House of Commons Work and Pensions Committee's April 2008 report on the HSE. One year on, the committee has published a follow-up report1 that revisits some of its recommendations and reflects on a period that has seen significant developments, not all of which the committee had envisaged. These developments include: a recession; a new HSE, HSE Board and strategy; the relocation of the HSE's HQ to Bootle and the resulting loss of hundreds of policy staff; government plans to implement Carol Black's report on the health of the working-age population; and a nuclear directorate that now looks set to become a statutory corporation.
The committee's 2008 report addressed most of the big issues facing the HSE, including red tape, enforcement, advice for businesses, ill health, and HSE resource and staffing levels. The government's response welcomed the recommendations that chimed with its own view but, with one exception, gave short shrift to those that would have ruffled the HSE's feathers. That exception was the establishment of a system of accreditation for safety practitioners, on which work is now under way.
One year on
For a one-year check-up on the HSE, the select committee met HSE staff and union representatives in Bootle, visited the Olympic Delivery Authority (ODA), heard oral evidence in June from the HSE's chair and chief executive, Judith Hackitt and Geoffrey Podger, and took a small amount of written evidence. The committee's subsequent report, published on 8 July, notes that the HSE has made progress on some of its recommendations, for example establishing a register for tower cranes. And, without gloating, the committee acknowledges that the HSE has made all its publications free of charge online (even though the Government rejected this recommendation in 2008 on the grounds that its funding of the HSE "assume[d] planned levels of income which, if not achieved, have to be offset by reductions in expenditure elsewhere").
The sad truth, however, is that too many of the committee's 2008 recommendations are now gathering dust - the same fate that befell its previous report - and that this latest time around, the MPs were either unprepared or unwilling to push Podger and Hackitt on what were, in some instances, inadequate answers. Nevertheless, the committee's 2009 report is a timely reminder to the HSE that it will continue to be called to account; in this feature, we look at the MPs' observations in four important areas - enforcement, directors' duties, occupational ill health, and worker involvement. The committee's recommendations are set out below, except for those on construction, which are similar to those made in Rita Donaghy's report on construction fatalities.
Prosecutions decline is not "insignificant"
The dramatic decline in the numbers of HSE prosecutions in recent years is well documented in these pages. Although the HSE has always sought to downplay this trend, the committee emphatically reject Podger's assertion that the fall in prosecutions has been "marginal" and does not represent an overall downward trend - a reduction of 40% in prosecutions over the past four years, it concludes, is not "insignificant". Nor can the importance of prosecution "be underestimated" and the MPs therefore ask the HSE to explain the reasons for the "significant drop... and how it will reverse this trend".
The MPs also quoted HSB's view to Podger that the Health and Safety (Offences) Act 2008 is "unlikely to increase either the number or length of imprisonments significantly; magistrates have long been able to use prison for more serious breaches - HSW Act general duties and contravening a prohibition notice - but have, like judges, who have greater powers, been reluctant to do so - and it is hard to envisage them suddenly availing themselves of custodial sentences for lesser offences." Podger rejects this as a pessimistic view: "It may take time but, nevertheless, we intend to press for [higher penalties] where they are justified, and we really have no reason at this moment in time to think there will be resistance."
The MPs, however, did not pursue the issue: the HSE's existing policy, for example, already commits it to pushing for higher penalties where justified; the problem has been that the courts, in general, have not responded appropriately. Instead, the MPs state only that they "are encouraged by the HSE's commitment to pressing for higher penalties where they are justified and will monitor its success in doing so". More combatively, they add that they are "disappointed" that after 18 months, the Sentencing Advisory Panel has still not published sentencing guidelines for corporate manslaughter and for health and safety convictions that have involved a death at work.
A dutiful wait
The committee described the awareness levels among directors of the guidance from the Institute of Directors and the HSE on health and safety as "unacceptably low". They quote too - without comment - Judith Hackitt's assertion before the committee that: "There are already duties on directors within the HSW Act. We can argue about and discuss how often those have been used in prosecutions but, nonetheless, there are duties already there. They have been reinforced, we believe, by the raising of the health and safety offences and levels of penalties in the Corporate Manslaughter and Corporate Homicide Act, but the basics of the duties are already there in the Act."
Regrettably, the committee did not press Hackitt on her view. There are, in fact, no explicit health and safety duties on directors; while directors can be punished for the failures of their organisations in limited circumstances of personal culpability, this arises in practice only in small firms and they are not, in any case, duties in the normal understanding of the concept. The MPs restricted their report to noting that the Donaghy inquiry had found that courts rarely use their disqualification powers and that without a specific legal duty on directors, the impact of the corporate manslaughter Act will be "adversely affected". Donaghy went on to recommend "positive duties on directors to ensure good health and safety management through a framework of planning, delivering, monitoring and reviewing". The MPs said that they would await the HSE's final evaluation and "maintain that if this approach is proving unsuccessful, statutory duties should be introduced".
Ill-health shortcomings
The committee's report criticises the quality and coverage of occupational health data as "too low and incomplete", but accepts that the HSE does not dispute this: indeed, Podger told the committee that the HSE is trying to improve the situation, with its Incident Contact Centre helping businesses to report ill-health data and The Health and Occupational Reporting (THOR) network increasing the amount of GP data that the HSE has access to. The committee cautions, however, that the Government has still to give any indication of a national rollout for THOR.
In terms of its 2004 Public Service Agreement, the HSE failed to meet either of its March 2008 targets for reductions in the incidence of ill health and lost working days. The committee notes that it is "inevitable" that the HSE will continue to miss its ill-health targets "unless significantly more effort is made by other parts of Government, employers and employees to reduce working days lost and work-related ill health".
The committee's 2008 report also noted that "days lost" was not an appropriate target because "many of the factors affecting its achievement were outside [the HSE's] control"; the government's response acknowledged this but stopped short of agreeing it was inappropriate. The committee's 2009 report hopes that improvements in ill-health data will arise from the replacement of the GP "sick note" with the new electronic "fit note" and the setting up of a new National Centre for Working Age Health and Well-being, as recommended in the Black report.
Engaging workers
Finally, we come to the issue that may offer the greatest grounds for optimism: new initiatives to engage workers in health and safety. The committee restates its hope that the HSE will work with industry to explore models for the future funding of projects such as those under its Workers' Safety Adviser (WSA) Challenge Fund, which stimulated partnership working in firms that lacked union representation. Specifically, the committee asks the HSE to disseminate to other organisations the approach of the ODA, whose every project includes arrangements for worker consultation, including a health and safety committee with worker representation, and an annual questionnaire survey of 50% of the workforce, all supported by a protected hotline for workers to raise any issues, including health and safety.
The issue of worker engagement is, as we have noted previously, central to the HSE's new strategy and the HSE recently revealed an ambitious £4 million two-year project to help realise its engagement goals. Podger told the MPs that "one of the first activities" in its new Business plan is to get the project under way with pilots for improving the training of safety representatives in smaller businesses and encouraging workers and first-line managers to cooperate on health and safety problem solving. These pilots, claims the HSE, are "part of the inheritance of the WSA scheme".
1 Work and Pensions Committee (2009), "Workplace health and safety: Follow-up report" (external website), fourth report of session 2008-09, vol. 1, report and formal minutes, HC635-1.
WORK AND PENSIONS COMMITTEE CONCLUSIONS AND RECOMMENDATIONS
1. The committee welcomes the establishment of a tower crane register. This will help to improve the control and management of risks in the use of tower cranes. We ask the HSE to keep us informed of progress in the development of this register.
2. We welcome Rita Donaghy's report [on construction fatalities], especially the recommendations to incorporate safety requirements into the Building Regulations and to extend the remit of the Gangmasters Licensing Regulations to include construction. We urge the Government to accept both these recommendations in full.
The HSE going forward
3. We welcome the HSE's new strategy, particularly its focus on working with others. It is important that the HSE has measurable benchmarks and timetables for its work, to allow proper scrutiny of its activities, and we are pleased to see that the HSE Business plan 2009/10 provides details of how it will achieve the objectives it sets out in its strategy. We will monitor progress towards these goals over the coming 12 months.
4. We note with interest the findings of research on behalf of the HSE, which suggested that the number and rate of accidents and injuries go down in a recession. However, given the cost pressures workplaces face in an economic downturn, we believe it is crucial that the HSE continues to provide appropriate advice and support to businesses, especially SMEs [small and medium-sized enterprises], to emphasise the importance of ensuring that health and safety is not compromised during this period. We welcome the work the HSE is undertaking with partner organisations to promote the importance of good standards of health and safety and we will continue to monitor the HSE's approach as the economy comes out of recession.
Occupational health
5. The quality and coverage of ill-health data remains too low and incomplete. However, the HSE acknowledges this fact and appears to be working hard to try and improve this. We welcome the HSE's commitment to increasing the accuracy of ill-health data and ask that the HSE keeps us updated on its efforts to improve this further.
6. We are disappointed that the HSE continues to miss its targets for ill health but believe that this is inevitable unless significantly more effort is made by other parts of Government, employers and employees to reduce working days lost and work-related ill health.
7. As a starting point, data collection and sharing must be improved. We welcome the establishment of a National Centre for Working Age Health and Well-being and urge the Government to ensure that one of the centre's core aims will be to significantly improve the quality of ill-health data.
8. We also ask the Government to explore the possibility of improving the level of detail provided in The Health and Occupation Reporting network (THOR) reports to allow the HSE to identify patterns of illness. Furthermore, we believe that anonymised data derived from the new electronic "fit note" must be shared with the HSE.
Prosecutions and enforcement
9. We do not accept that the fall in prosecutions by the HSE is insignificant. In 2003/04 the HSE prosecuted 1,720 offences compared to 1,028 in 2007/08 - a reduction of around 40% over four years. The importance of prosecution, both as a response to those who breach health and safety law and as a deterrent to those who might, cannot be underestimated. We call on the HSE to explain why there has been such a significant drop in the prosecutions it has taken since 2003/04 and how it will reverse this trend.
10. We welcome the introduction of the Health and Safety (Offences) Act, which will give courts greater powers of sentencing and increase fines for those who breach health and safety legislation. We are encouraged by the HSE's commitment to pressing for higher penalties where they are justified and will monitor its success in doing so.
11. We are sympathetic to the complex process involved in developing the sentencing guidelines for corporate manslaughter convictions. However, we are disappointed that 18 months after the Sentencing Advisory Panel's first proposals, the final guidelines are still not available. We ask the Government to confirm the publication date for the guidelines before the end of this parliamentary session.
12. The findings of recent research suggest that director-level awareness of guidance on health and safety legislation is unacceptably low. Furthermore, Rita Donaghy's recent inquiry into fatal accidents in the construction industry recommended that positive duties should be introduced for directors. We await the findings of the HSE's evaluation of its voluntary guidance for directors with interest and maintain that if this approach is proving unsuccessful, statutory duties should be introduced.
Worker engagement
13. We were very impressed with the efforts the Olympic Development Authority has made to encourage worker engagement in health and safety. For example, we commend the operation of a private hotline for workers who wish to raise health and safety issues. We hope the HSE disseminates the practices of the ODA to other organisations, as an example of how to develop a positive health and safety culture in the workplace.
14. We welcome the HSE's plans to pilot approaches aimed at improving worker engagement. If the pilots prove successful, we urge the HSE to invest in a worker engagement scheme on a permanent basis. We accept that there are many pressures on the HSE's resources; however, increasing worker involvement in health and safety is an investment that will reap its own rewards in the long term if health and safety standards are improved and accidents avoided.
Nuclear Directorate
20. We welcome proposals to change the structure of the Nuclear Directorate on the basis that it enhances the transparency and efficiency of the regulatory regime and should resolve the recruitment difficulties it has experienced in the past.
21. We are pleased that the new body will have a separate board from the HSE and we recommend that the Government consults on the governance arrangements before appointing board members. We ask the Government to keep us updated on progress towards the development of the new structure and we will return to this issue again as necessary.
22. For those staff who are permanently transferred to the new body it is imperative that their rights under TUPE legislation are protected. We ask the HSE to provide further information on the implications of this transfer and to ensure that the move does not impact negatively on those affected."
Source: Work and Pensions Committee.
