Where is the justice?

Hazards 104, October - December 2008

Would you feel safer at home if you were told police numbers were falling? Or if the government argued that the police should spend more time on the friendly persuasion of muggers and murderers, rather than collaring them? Well, when it comes to workplace health and safety crimes – and breaking safety law is a criminal offence that frequently results in injury or death – that’s exactly the official line.

The benchmark is never whether more workers will die, become sick or be injured, it’s whether fewer burdens will fall on business. In the last five years, Health and Safety Executive (HSE) staffing has fallen dramatically, government policy has demanded less enforcement and, this year, the government has backed calls for small businesses to cut back their safety administration to under three minutes a day. At the same time, HSE safety prosecutions, convictions, enforcement notices and investigations of major injuries have all plummeted. It’s just the workplace death rate that has remained stubbornly high.

In 2004, HSE had 1,483 “operational frontline inspectors”. This number fell year on year, until by April 2008 the watchdog had just 1,238 inspectors on the workplace beat, a fall of over 16 per cent.

Figures obtained by Hazards show the loss of factory and agricultural inspectors in this five year period was more dramatic still, down over 17 per cent from 852 to 706. Offshore inspectors fell from 146 to 116, a drop of over 20 per cent, quarries inspectors from 13 to 9 (over 30 per cent). Numbers of front line inspectors fell in every single sector enforced by HSE.

HSE figures released on 29 October 2008 [1], confirmed the number of fatalities have remained significantly higher than the record low of 2005/06, when 217 workers died. Final figures reveal 229 workers died at work in 2007/08, down 7 per cent on 2006/07 but up 5 per cent on 2005/06. The fatality rate of 0.8 per 100,000 has barely altered since 2002/03. The number of construction deaths remained resolutely high, at 72 and the number dying in agriculture increased to 39, up from 36 in 2006/07.

HSE’s budget in 2005/06, the best year for fatality prevention, was £304.7 million. In 2007/08, it was £280.3 million, a drop of about 8 per cent. There were 1,328 frontline HSE inspectors in April 2006. In April 2008 the figure was 1,238, a drop of about 7 per cent.

WHODUNNIT? A worker died, the bosses were guilty, they lied to cover their tracks and they went to jail. But there was no conviction for manslaughter. Instead directors David Matthews and Michael Anderson (above) and employee David Lomas were jailed for perjury. more
Photo: Dorset Police

Several factors have left the beleaguered watchdog with little room for improvement. It has far fewer inspectors to do the gruntwork, far more workplaces to inspect and a government intent on less enforcement activity and in fewer places.

The government has ignored a series of Select Committee reports, written by cross-party panels and advised by submissions from hundreds of organisations, calling for more resources for HSE, more HSE inspections and prosecutions, extra rights for safety reps, and new directors’ duties and more punitive penalties on employers.

However, when the Better Regulation Executive (BRE) – which the government says “works with business and government departments to ease the pressures of legislation on the business community” – published a report on safety enforcement in August 2008 calling for deregulatory measures [2], the government leapt to accept wholesale its recommendations [3]. The BRE report found small firms spend under three and a half minutes a day on safety admin – a burden it believed should be slashed further to reduce costs.

RARE JAILING In August Sharaz Butt, 44, became on of a very select band – an employer who was jailed for safety offences. The company director was jailed for 12 months after pleading guilty to the manslaughter of building worker Wu Zhu Weng, who died in a fall in January 2008. Judge Peter Jacobs said Butt’s disregard of safety procedures was “total lunacy”, jailing him and disqualifying him from acting as a company director for five years.

The 6 August BRE report, ‘Improving outcomes from health and safety,’ found small businesses spend on average 20 hours a year on safety administration, or three minutes and 17 seconds per day. It says paring this back to a daily average of under two and a half minutes – a 25 per cent reduction – “would save low risk businesses £150 million a year.”

The strategy will mean fewer inspections for workplaces deemed “low risk”, although this is already the practice employed by the Health and Safety Executive (HSE).

The report does not spell out if firms currently considered sufficiently risky by HSE to warrant inspection will now be shunted into the ‘low risk’ category. Nor does it establish how in the absence of inspections it will know if individual employers are operating unsafely within the ‘low risk’ sectors, which the report identifies as finance and business, hotels and restaurants, wholesale, retail and repair and education.

And the report, which has been criticised by unions, ducks issues like the high rates of certain occupational diseases in some of these sectors – for example, international research has shown hotel workers can have the highest rate of musculoskeletal disorders of any industry, a major occupational health problem also afflicting warehouse, checkout and other retail sector staff. Academic research for the TUC [4], also published in August 2008, found that it was these precise sectors that were already suffering an advice and enforcement shortfall, with workers facing widespread abuses as a result.

BAD PRESS? HSE's news release didn't mention the jail terms for the bosses of Reliance Scrap Metal, because under the existing law a manslaughter charge did not stick. Thomas Mooney received fatal burns in this compactor, when an acetylene cylinder exploded. more
Photo: Dorset Police

Whether it is a result of government direction or internal HSE decisions, the safety watchdog is not the enforcement agency it used to be. It has fewer inspectors and the inspectors it has are under strict orders to take a softer line.

In April 2008, HSE became subject to the Regulators’ Compliance Code – another government bid to ease the “burden” of regulation on business. An HSE briefing on the codes says its purpose “is to embed a risk-based, proportionate, targeted and flexible approach to regulatory inspection and enforcement among the regulators to which it applies” [5].

We are not talking about an enforcement agency on a rampant quest for justice. The number of fatal and major injuries at work each year is around 30,000. The annual number of prosecutions taken each year by HSE is not much over the 1,000 mark. This reflects a dramatic drop in enforcement. There were 1,986 offences prosecuted by HSE in 2001/02, with 1,522 convictions. By 2007/08 this figure had fallen to 1,028 offences prosecuted and 839 convictions, falls of 48 per cent and 45 per cent respectively.

By 2007/08 this figure had fallen to 1,028 offences prosecuted and 839 convictions, a fall of 48 per cent and 45 per cent respectively.

There is a growing corporate accountability deficit for safety crimes. The ratio of prosecutions to fatalities gives a simple index of the dramatic decline in accountability. In 2001/02, there were 251 worker deaths, the equivalent of six convictions for every death. By 2007/08 this had fallen to fewer than four convictions per death. Without the inspectors on the ground, HSE does not have the resources to find or prosecute safety offenders.

Increasingly, it doesn’t have the resources to even investigate the major injury reports it receives. In November 2007, Hazards revealed 9 out of every 10 major injuries do not result in an investigation, with increasing numbers of the most serious priority major injuries supposed to be guaranteed an investigation falling by the wayside. In 2006/07, HSE inspectors said “inadequate resources” caused their failure to investigate some of the most serious workplace injuries on 307 occasions [6].

At the same time, HSE inspection rates dropped dramatically [7]. A November 2008 report from Unite, confirmed growing numbers of major injuries go uninvestigated by HSE [8].

HSE’s little interest in big injuries

Official investigations into major workplace injuries have dropped dramatically, a November 2008 report from the union Unite has revealed [8]. Investigations into major injuries declined by 43 per cent between 2001/02 and 2006/07. In 2006/07, the most recent year for which statistics are available, only 1-in-10 major injuries (10.5 per cent) reported to the Health and Safety Executive (HSE) were investigated.

In 2001/02, over half of reported workplace amputations (55 per cent) and asphyxiations and poisonings (54 per cent) resulted in an HSE investigation. By 2006/07, this had fallen to 38 per cent and 30 per cent respectively. Over a third (35 per cent) of reported cases of temporary or permanent blindness at work was investigated by HSE in 2001/02. By 2006/07 this had dropped to under one in every 10 blinding reports (9 per cent).

Over the same five-year period, there was a 69 per cent reduction in the number of ‘over-three day’ injuries investigated, with just 1.2 per cent of these reported incidents now investigated. There was a 31 per cent decline in the number of ‘dangerous occurrences’ investigated, with just one-in-four (25 per cent) now investigated.

But when given the opportunity to introduce new penalties which would allow it to take more enforcement action with less bureaucracy, HSE has opted for business as usual. It has just waived its right to apply for new civil sanctions open to enforcement agencies under the Regulatory Enforcement and Sanctions Act, which become law in summer 2008. The Act allows regulators to apply to the minister for new powers designed to provide more appropriate and efficient alternatives to criminal prosecution. These sanctions include fixed monetary penalty notices - on-the-spot fines - or variable fines.

There is also provision in the Bill for enforcement undertakings, legal agreements where the offender has to carry out specific activities to improve health and safety. HSE, though, maintains “there was no 'enforcement gap' for health and safety enforcers, and hence no need for HSE and local authorities to adopt these alternative penalties”.

Other workplace safety regulators do not agree. The Local Authorities Coordinators of Regulatory Services (LACORS), has expressed irritation at the HSE move, which ruled out new enforcement approaches for local authorities as well as HSE. Both safety professionals’ body IOSH and TUC said they thought the failure to take up alternative penalties was a missed opportunity.

The Health and Safety (Offences) Act which came into effect in October 2008 and introduces the possibility of larger fines and jail sentences, only came into being as a result of a private member’s bill by a back bencher, not a government move. And new explicit health and safety duties on directors were ruled out again last year by the government. Instead HSE cooked up voluntary guidance with the Institute of Directors – guidance early indications suggested was having little impact.

In December 2008, HSE is expected to launch a consultation on a new strategy. But this will not be an ambitious blueprint for better enforced, more safe and more just workplaces. It will be linguistic acobatics, presenting a neutered watchdog as still relevant.

Expect talk of “targeted inspections”, meaning some workplaces may never be targeted at all. Expect calls for partnership and voluntary action and cooperation and awareness-raising, meaning more hand-wringing and less enforcement.

Expect nothing. For many, when it comes to enforcement, that will be as good as it gets.

Bosses jailed for fireball death cover-up
Two directors of a Dorset firm that broke criminal safety laws leading to the death of an employee, then pressured staff to give “false and erroneous evidence” to cover their tracks, were jailed in September 2008. Although HSE was involved in the prosecution, the jailings were not for safety offences and the HSE’s news release made no mention of the jail terms.

Reliance Scrap Metal Merchants (Parkstone) and one of its directors, David Matthews, 56, had earlier been found not guilty of manslaughter. However, Matthews was sentenced at Winchester Crown Court to three years for perverting the course of justice. Fellow director Michael Anderson, 48, received 15 months, while employee David Lomas was jailed for six months, after admitting the same charge.

Thomas Mooney, 64, was helping to cut cylinders of highly dangerous gases while standing in the hopper of a compactor machine when an acetylene cylinder exploded at the site in Poole, Dorset, in 2005. He was engulfed in flames and died later the same day. It was only after the first trial, when Matthews was found not guilty of manslaughter, that he admitted he and Mr Mooney were inside the compactor hopper and operating it by remote control.

At Winchester Crown Court, recorder Judge Broderick told Matthews: “You skilfully wove together a mixture of fact and fiction.” Detective Inspector Steve Thorpe, of Dorset Police, said: “It has been a long and complex investigation. The defendants tried to impede and frustrate this investigation from the start.” The Crown Prosecution Service conducted the case on behalf of both Dorset Police and the Health and Safety Executive (HSE).

Reliance Scrap-Metal Merchants was also fined £60,000 for a breach of the Management of Health and Safety at Work Regulations. The fine was reduced from £90,000 because of an early guilty plea. David Matthews was fined a total of £1,000 for safety offences.

The incident was the subject of an 18-month investigation by detectives from Poole CID, Dorset Police’s Major Crime Investigation Team (MCIT), investigating officers from the Health and Safety Executive (HSE) as well as HSE laboratory staff. Detective inspector Jez Noyce, of Dorset Police’s MCIT, said: “In this case, the two defendants used their position in the company to pressurise and manipulate their staff into giving false and erroneous evidence.”

References

 

1. HSE statistics 2007/08
2. Improving outcomes from health and safety, BRE, August 2008.
3. Health and safety reforms set to save small business £300 million, BERR news release, 6 August 2008.
4. Pollert A, Danford A, Tailby S, Wilton N and Warren S. Survey of Employment Rights Advisers From Citizens Advice Bureaux and Law Centres. Bristol: Centre for Employment Studies Research, Bristol Business School, University of the West of England, 2008. [pdf]
5. How HSE meets the obligations in the statutory Regulators’ Compliance Code, HSE website.
6. What gorilla?, Rising deaths, enforcement scandal, consultation farce, useless statistics. Hazards, number 99, July/September 2007.
7. Just who does HSE protect? Hazards, number 100, October/December 2007.
8. Incidents reported to the Health and Safety Executive: Lack of investigation 2001-2007, Unite, November 2008 [pdf].