RIDDOR reporting under review

Howard Fidderman looks at the HSE's proposal to turn over-three-day injuries into over-seven-days.

On this page:
Current RIDDOR reporting
Minimal cost savings to employers
Fitting the fit note
Data justifications
Three hand-tying factors
HSE approach to investigation
HSE consultation
Under-reporting of over-three-day injuries
Box 1: Incident contact centre changes.

In his 2010 report to David Cameron, Common sense Common safety (PDF format, 685K) (on the Number 10 website), Lord Young of Graffham made two recommendations on the statutory reporting of work-related injuries. The first was to amend the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR) to replace the duty on employers to report "over-three-day" injuries with one to report "over-seven-day" injuries. The HSE started consultation on this proposal (PDF format, 931K) (external website) on 31 January and its proposals are the subject of this feature.

Young's second, more fundamental, recommendation was that the HSE "re-examine the operation of RIDDOR to determine whether this is the best approach to providing an accurate national picture of workplace accidents". Young envisaged this review starting in January too, but the HSE is delaying action on this, ostensibly to see how implementation of the first recommendation pans out. A paper (PDF format, 398K) (external website) by HSE officials to the HSE Board meeting on 15 December 2010 noted that the "HSE proposes to evaluate the impact of the over-three-days to over-seven-days change before beginning work to address Lord Young's second RIDDOR recommendation".

When HSB asked the HSE whether or not such a delay was acceptable to the Government, given that the Prime Minister had accepted all of Young's proposals, we were told that "actions taken on all [of Young's] recommendations are reported back to ministers and this has therefore been the case with the RIDDOR recommendations. HSE's view is that progress on the over-seven-day recommendation should not be delayed by the wider consideration necessary for RIDDOR as a whole."

Current RIDDOR reporting

RIDDOR currently requires the "responsible person" (usually the employer) to report three categories of injuries involving workers - "fatal", "major" and "over-three-day" - that are caused by an accident arising out of, or in connection with, work. An "over-three-day injury" is one that leaves a worker "incapacitated for work of a kind which he might reasonably be expected to do" for more than three consecutive days, excluding the day of the accident but including days that would not have been working days. The responsible person must report the injury to the Incident Contact Centre (see box 1) as soon as practicable but within 10 days of the accident. The reports are placed on a database that HSE staff use to target inspections and formulate policy.

The HSE proposes amending reg.3(2) of RIDDOR so that the duty to report applies where the worker has been incapacitated for more than seven - rather than three - consecutive days (again excluding the day of the accident and including days that would not have been working days). Northern Ireland has its own reporting system and will not be affected by the change. In the December 2010 board paper, HSE officials advise that the reason for the period being more than seven days, rather than seven days or more, "takes account of the fact that in many circumstances the day of the accident will not be counted by doctors and social security requirements as a full day's absence".

The HSE is also proposing a consequential amendment to reg.7 of RIDDOR to ensure the existing requirement on the responsible person to record injuries that lead to over three days' absence is maintained (and not increased to over seven days - ie, it will not be aligned with the reporting duty).

Minimal cost savings to employers

Lord Young offered five main justifications for the change. First, there would be a significant reduction in the number of RIDDOR reports that businesses would need to make. In percentage terms, the reduction may well be "significant", but in terms of time and the numbers of employers affected, the effect will be relatively small. The HSE's impact assessment in the consultative document cites results from the Labour Force Survey (LFS) - which asks respondents how many days they were off sick following an accident before they returned to work - that indicate:

  • an average of 259,317 injuries (all three categories) should have been reported under RIDDOR annually between 2007/08 and 2009/10;
  • if the over-three-days category had instead been over-seven-days, the annual average would have fallen to 185,509, ie there would be 28.3% fewer non-major RIDDOR reports as a result of the shift to over-seven day reporting; and
  • this would have meant that 27,245 of the 96,271 over-three-day injuries that were actually reported in 2009/10 would not have been reportable as over-seven-day injuries.

The impact of the change will fall mainly on larger employers and the service sector. The board paper advises that the 2008/09 RIDDOR data show that 60% of the 105,000 over-three-day reports in that year stated the size of the organisation, of which 58% (ie 35% of the total) had more the 200 employees. And, with only 0.6% of organisations in the UK having more than 200 employees, the HSE concludes "a very small percentage of employers are reporting at least a third of the total number of over-three-day [injury] reports". Further, of the five broad employment sectors, services accounted for 74% of the over-three-day reports, followed by manufacturing (17%), construction (6%), and agriculture and the extractive industries (1% each).

Nor will the savings be great; the HSE's best estimate is that the net benefit (ie taking account of all costs and all benefits) for business over 10 years is £1.71 million at today's value. The saving is premised mainly on a reduction in time spent investigating and reporting RIDDOR injuries, and assumes that a RIDDOR report takes 30 minutes of a production manager's time at £23.73 per hour, ie a total cost of £11.86. But the manager will still have to record over-three-day injuries (and maintain the record for three years), which will take 10 minutes at a cost of £3.95 at the same rate. The HSE therefore estimates business will save just £7.91 for each report not submitted.

The consultative document argues that there is no evidence to suggest the "proposed amendments and review will have a negative impact on employers, the self-employed and employees". The fact that employers will still have to record over-three-day injuries will allow them to manage the risks: "Therefore the removal of the requirement to report some of the injuries would not be expected to have adverse effects on health and safety in the workplace."

Fitting the fit note

Young secondly believed the increase to seven days "would coincide with the requirement for individuals to obtain a GP's 'fit note' [formerly the sick note] if their absence is expected to last more than a week". This, said Young, "would ensure that a person who has suffered a reportable injury has had a professional medical assessment".

And indeed it should, even though workers are already required to visit their doctor for a "fit note" when they have been off for a week - regardless of whether or not their injury is classified under RIDDOR. The HSE told HSB: "The advantage is simply that for reportable injuries, the injured person will have had their incapacitation examined and assessed by a medical practitioner. This may also give a prognosis for the return and the limitations the injury may place on them under the new 'fit note' form."

Nor do the statements of Young and the HSE address the possibility that a duty to report an over-three-day injury may make an employer take it more seriously than if it has merely to record it in an accident book. There may also be over-three-day injuries that will fall short of eight days' absence but that the HSE or a local authority (LA) may have formerly investigated (albeit infrequently, as we note below) but will no longer be drawn to their attention. Nor does Young - and therefore the HSE - consider the alternative means to the same harmonised end, which would have been to reduce the length of time before a worker visits a GP for a fit note to four days' absence, although this would have opened up a far bigger can of worms.

Data justifications

Young's three other over-seven-day justifications fall broadly into the "data" category: RIDDOR and over-three-day information can be obtained from other sources; there would still be a record of over-three-day injuries because employers will have to record them in accident books; and the change would improve the accuracy of national statistics. RIDDOR, Young said, "can often be seen as a cumbersome system, and compliance is estimated at around 50%. There is evidence from the HSE of under-reporting of RIDDOR, which makes me question its successful operation."

Taking these three justifications in turn, it is true that some RIDDOR data can be obtained from the LFS, but the LFS is based on only a sample of the population and relies on the views of the worker and not the employer. And while the HSE could introduce some kind of quality check by looking at a sample of employers' over-three-day records, it will not provide the same volume of data and, in this era of HSE austerity, it is difficult to envisage the HSE spending any more resources than it must in this area. And while Young's third claim about statistical accuracy is valid in the sense that under-reporting is indeed greatest at over-three-day level, and it is probable that there would be less under-reporting at over-seven-day level, it is true only in the reductive and ridiculous sense that the level of reporting would be more accurate still if the HSE removed all non-fatal injuries and all ill health from the data, because it is only at the level of fatal injuries that we can be sure there is little or no under-reporting.

Three hand-tying factors

The hands of the HSE and Young - by their own admission - are in any case tied by three factors:

  • Article 9c of the Framework Directive (89/391/EC) requires employers to record over-three-day injuries, and art.9d requires employers "to draw up, for the responsible authorities and in accordance with national laws and/or practices, reports on occupational accidents suffered by his workers". When HSB asked the HSE whether or nor its proposal to move to over-seven-day reporting might conflict with art.9d, the HSE replied: "The requirement to report is a matter for national laws, which HSE is consulting on changes to here. HSE does appreciate the need to ensure that commitments made to the EU, and agreements we have with our European partners to align recording and reporting are properly recognised in the process. The outcome of the current consultation exercise will inform the next steps."
  • Annex IV of the Eurostat Directive (1338/2008) on community statistics on public health and safety at work requires member states to provide the European Commission with data on occupational accidents that result in a fatality or more than three days off work. Although the RIDDOR over-three-day category would have satisfied this requirement, over-seven-days will not. Article 4 of the Directive, however, allows the information to be drawn from either household surveys or "national administrative or reporting sources". Implementing Young's proposal would therefore leave the HSE needing to find some means of generating data for injuries that require between four and seven days off work. The cheapest option would be for the HSE's statistics branch to "generate a synthetic estimate" using LFS data.
  • RIDDOR, according to the consultative document, "requires dutyholders to alert enforcing authorities of incidents that may have resulted from the dutyholder breaching the law". In fact, RIDDOR does not require this - the requirement relates to the severity of the injury and exists regardless of any potential legal breach - and when we asked the HSE to explain its claim, it replied: "To clarify - RIDDOR requires dutyholders to alert enforcing authorities of incidents. As these incidents may have resulted from the dutyholder breaching the law, compulsion through legislation to do this is judged necessary."

HSE approach to investigation

Young did not consider the effect of his over-seven-day recommendation on the HSE's approach to investigation, and the board paper concedes the "reduction in the number of non-major reports submitted to HSE … could reduce the ability of inspectors (both HSE and LA) to review cases that were near misses and to target their inspections."

Nevertheless, the HSE believes the effect will not be significant because most investigations arise from fatal and major injuries. The HSE chooses which reports to investigate using RIDDOR incident-selection criteria; it last reviewed these criteria (PDF format, 188K) (external website) - and deemed them fit for purpose with minor changes - in 2010. The board paper advises: "In 2008/09 around 4,272 (3.5 %) of all injuries correctly reported to HSE were investigated - comprising 5.2% of reported major injuries and 0.8% of reported over-three-days … The criteria require that certain major injuries should automatically be considered for investigation but that other major and over-three-day injury reports should be checked for indicators of possible serious breaches of health and safety law. The reduction in the number of lost-time reports following implementation of this recommendation will not, therefore, have a significant impact on HSE's investigation and enforcement work due to the very low level of investigations for over-three-day injury reports at present."

The impact on LAs, adds the HSE, "cannot be judged with great certainty" but "is likely to be greater than for HSE" because LAs deploy a varied approach (external website): while some follow the HSE's line, others investigate every RIDDOR report. The HSE does not, however, know the percentages of major and over-three-day injuries that LAs investigate.

The HSE Board paper argues: "RIDDOR reports, in addition to alerting enforcing authorities to individual incidents for investigation and enforcement work, provide intelligence data to help with planning and targeting enforcing authorities' interventions. The estimated 29% reduction in the number of lost-time reports will impact on this but should not significantly compromise HSE's ability to effectively target its work. Over the past decade, trends in over-three-day and over-seven-day accidents have followed the same pattern and it is reasonable to assume that the profile of reported accidents will be similar."

HSE consultation

Consultation ends on 9 May, four weeks later than the HSE originally envisaged. On 16 December 2010, the HSE advised, after approval by its board the day before, that the consultation would start in the week commencing 17 January 2011. In the event, publication was delayed until 31 January because of what the HSE told HSB were "a few administrative delays in getting through the formal committee stages". This delay might be significant: the original timetable envisaged the Regulations going to ministers on 2 August before being laid before parliament on 5 September, coming into force on one of the two following common commencement dates, ie 1 October 2011 or 6 April 2012. It is uncertain whether the HSE can retrieve the lost time and still make 1 October 2011.

Nor is the attitude of the HSE clear. The savings for the HSE - £3,915,000 over 10 years - are not insignificant at a time when it is having to deal with a 35% cut in government funding . (The main savings for the HSE and LAs are £350,000 per year from reduced processing of RIDDOR reports.)

Nevertheless, the consultative document itself is a half-hearted affair: it is short, proposing no more than the change itself, followed by seven questions. And although there is some interesting detail in the impact assessment, there is very little exploration of the consequences of the proposals compared with most HSE consultations. For example, there is no consideration as to whether a shift to over-seven-day reporting will significantly increase the overlap with major injuries. The HSE told HSB: "This is exactly the sort of issue that we would expect the consultation exercise to inform."

A second example: the HSE is not recommending any change to the time limit for reporting over-seven-day injuries, ie the responsible person must still report the injury to the enforcing authority as soon as practicable but within 10 days of the accident. But while 10 days is sufficient to report an over-three-day injury, will it be adequate for over-seven-day injuries, when the employer will not even know that the injury is reportable until day eight? Again, the HSE told HSB that it "will look at the responses to the consultation to see if this is an issued raised and consider any changes in light of this".

Under-reporting of over-three-day injuries

Following the board meeting in December 2010, HSE chair Judith Hackitt spoke - a little cryptically perhaps - of "other factors" beyond the benefits to business that "need to be taken into account. We hope that interested parties will use the consultation exercise to provide the range of perspectives we need to consider in order for us to advise the Government appropriately."

Were the HSE not to implement the recommendation, the impact assessment notes: "There is a risk that HSE may suffer reputational damage as a result of failing to implement one of the recommendations from the Young report." When we asked the HSE whether or not, were it not for Young's report, it would have proposed an over-seven-day category, we were told the "HSE had no plans to propose this specific change before receiving Lord Young's report, but all of HSE's systems and processes are under ongoing and continual review to ensure they are fit for purpose."

It also makes little sense for the HSE to tinker with the reporting requirements before undertaking a major review. There are enormous problems with the under-reporting of over-three-day injuries, but the solution is not necessarily to remove the duty to report them. There is also an irony in that a Government that is supposedly committed to simplifying life for employers is actually introducing a fourth category of injury - over-seven-days - that employers will have to address (they will still need to record over-three-day injuries). Surely, it would have been preferable to make the change only should the full review of RIDDOR conclude such a change necessary. And a fundamental review will need to take into consideration the essential deficiencies of RIDDOR, including what to do about the two largest killers of workers: ill health, which RIDDOR barely scratches at, and road accidents, which RIDDOR basically ignores.

In the end, the overriding impression is that the HSE believes this to be a relatively minor change that will bring minor benefits and a few inconveniences, with none so significant as to engender enthusiasm or outrage. After all, with over-three-day injuries so massively under-reported and under-investigated, who will miss a further 27,245 "statistics" each year?

Box 1: Incident contact centre changes

At the same time as consulting on RIDDOR reforms, the HSE is separately trying to bring in-house the process for reporting incidents. Initially, the HSE had invited expressions of interest in spring 2010 for a new contracted-out service that would replace and combine its Incident Contact Centre (ICC), to which dutyholders report incidents under RIDDOR, and its Infoline service, which provides advice on workplace health and safety. But on 27 October 2010, the HSE's chief executive, Geoffrey Podger, told the monthly HSE Board meeting (PDF format, 240K)  (external website): "In response to the Government's stated commitment to review all public expenditure, the HSE has taken the decision to cancel the procurement tender exercise and develop an alternative, predominantly web-based delivery model instead."

Although the ICC contract was scheduled to end on 31 March 2011, the HSE told HSB that "the ICC contract will be continuing beyond the end of March and when appropriate transition arrangements have been confirmed, we will make an announcement". The HSE had hoped the new service would be operational from October 2011.