Hazards reveals HSE is walking away from enforcement

Sure, we'll be safe

What would criminals think if they knew the police presence had dropped by over 25 per cent in three years, and more cuts were planned? Hazards editor Rory O’Neill says that’s exactly what has happened at the workplace, where Health and Safety Executive (HSE) workplace inspections have plummeted to a new low and HSE is increasingly relying on companies to just say they’ll be safe.

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When Health and Safety Executive (HSE) inspectors enter a workplace, there can be crucial outcomes. They can catch and punish a safety criminal or, better still, they can stop criminal neglect of safety leading to a death, injury or a case of occupational disease.

Hazards has for months being pursuing HSE for its figures on these critical inspections but has been told repeatedly the information “is not held by the Health and Safety Executive” (Hazards 93). In February 2006, however, Hazards received a written apology from HSE head of operational policy, Heather Bolton. The information was held by HSE after all.

The figures reveal employers have never before enjoyed such freedom to neglect safety rules. In the three years from 2002/03, inspections by HSE’s Field Operations Division (FOD) – the plods visiting the workplaces to protect your safety and bring safety criminals to book – had dropped off by over 25 per cent, down from over 74,000 to barely 55,000 last year, a new low.

Total “regulatory contacts” by the FOD inspectors - which includes inspections, investigations, enforcement action, seminars, workshops and advisory activities – had also plummeted, with the 2004/05 figure of 150,763 down by 20 per cent over the three years.

HSE is not advertising this walk away from inspections. The figures are not published in HSE’s annual report – they only came to light after a Hazards Freedom of Information request, which was denied, and a subsequent internal HSE review demanded by Hazards.

HSE can’t see the problem

* Figures released to Hazards by HSE, via the Freedom of Information appeals procedure, 17 February 2006.
FOD regulatory contacts include HSE inspections and other activities by field inspectors, including enforcement action, seminars, workshops and advisory activities. Total HSE inspection and regulatory contact figures have not been recorded since 2003/04.

The Unenforcer

The dramatic fall in official safety inspections is the latest piece of evidence revealing how far HSE has moved from its role as the UK’s official health and safety enforcer. Firms are now less likely to be inspected, less likely to be prosecuted, less likely to be convicted and less likely to receive an HSE notice requiring safety improvements.

This is despite assurances from Health and Safety Commission (HSC) chair Bill Callaghan at a November 2004 TUC conference that there was no plan for “a shift of resources away from inspection and enforcement.” If the resources haven’t moved, then HSE inspection and enforcement must be a lot less efficient than it used to be, because since November 2004 there have been significantly less of both.

The number of HSE prosecutions fell from 960 in 2003/04 to 712 in 2004/05. Convictions for safety offences fell from 887 to 673. And the total number of prohibition or improvement notices fell from 11,295 to 8,445.

HSE has argued that under its “2010 and beyond” strategy it is adopting alternative methods to improve safety, “free from the fear of enforcement” (Hazards 86). Precisely who is doing what and how much of it is going on is less clear. The figures show HSE’s dwindling troop of already over-stretched field inspectors are not picking up the slack, as their non-inspection activities have been seriously curtailed too.

Neither do the figures for overall HSE inspections and regulatory contacts support HSE’s contention. They can’t. As HSE’s Heather Bolton revealed in her apology to Hazards, for overall HSE performance “HSE no longer collects or publishes some of the information ie. number of inspections and regulatory contacts from 2003 onwards. From 2003/04 this measure is no longer reported externally, rather, we now report on how efficiently we allocate front line operational resources against our plans.”

Does HSE know what it’s doing?

If the Health and Safety Executive (HSE) is to be accountable and capable of fully evaluating the impact of its strategy and its plans, you would think it would need a pretty clear idea of what it is doing. But HSE sees it differently, and no longer records certain key data.

NOT RECORDED: Total number of HSE inspections.

NOT RECORDED: Total number of inspections by HSE specialist inspectors.

NOT RECORDED: Total number of HSE regulatory contacts, including enforcement action, seminars, workshops and advisory activities.

NOT RECORDED: Number of Voluntary Cessations of Work (VCW), an alternative to prohibition notices used increasingly but not appearing on the employer’s enforcement record (www.hazards.org/totalsuckup)

NOT RECORDED: The median fine per safety offence prosecuted by HSE – with fewer than 1,000 HSE prosecutions each year, down to 712 last year, occasional large fines like the £10m fine imposed in 2005 on Balfour Beatty for the Hatfield disaster and the £15m fine on Transco massively distort the “average” fine figures published by HSE. HSE says it could produce the median fine figure for a fee, but does not produce it for its own purposes.

NOT RECORDED: Records of workplace safety convictions, improvement notices and prohibition notices more than five years old, which HSE says are now deleted automatically from HSE’s database, an interpretation of Rehabilitation of Offenders Act requirements that goes way beyond that used by other government departments and agencies.

HSE’s defence is that the important statistic is what is actually happening to working people – if workplace accident and disease stats are going down, then whatever it is doing must be working.

There are several problems with this approach. Firstly, there is not a uniform trend in accident and disease statistics. Manufacturing and agriculture figures, for example, have recently bucked the general downward trend. Some sectors like waste have seen a massive increase in deaths. If HSE doesn’t have data on what it is doing, it can’t evaluate effectively what is working and what is not.

Secondly, most people harmed by work are victims of work-related ill-health, not accidents – and HSE’s statistics give no indication of the real extent of this problem, grossly under-estimating the work contribution towards some of the most common health conditions like occupational cancer and heart disease and missing other work-related conditions entirely (Hazards 93). This is not a minor statistical oversight. This is tens of thousands of deaths missed each year.

Thirdly, even if HSE’s strategy is effectively reducing deaths, injuries and ill-health caused by work, that doesn’t mean that breaches of criminal health and safety law should be policed and enforced with less rigour. If HSE is using its enforcement options less and is inspecting less it is certain more employers guilty of criminal breaches of safety law are evading sanctions.

Finally, HSE’s performance is not the only variable, something presupposed if accident and disease figures are the major HSE performance benchmark. Other factors like strength of the economy and job security affect working conditions and accident levels. Unions have a dramatic impact on safety performance – if levels of unionisation decrease, then that too will impact on the nation’s safety performance.

Is HSE responsible?

'Trends and context to rates of workplace injury’, a report produced in 2005 for HSE by the Warwick Institute for Employment Research, concluded “our analysis calls into question whether over-arching targets for health and safety provide an objective measure against which to judge the performance of the regulatory regime. Rates of workplace injury can also be affected by the location of the economy within the business cycle.”

The report found that the general downward injury trend, far from reassuring, could have been anticipated given these changes alone. The authors conclude: “When the results from the statistical model to estimate series of predicted injury rates, it was observed that the series of predicted injury rates closely followed the series of actual injury rates, indicating that changes in the observable characteristics of individuals can account for movements in workplace injury rates over time.”

The authors indicate that future use by HSE of accident figures as an indicator of its performance could be misleading. The report said: “Whilst projected changes in the occupational composition of employment appear to be working in favour of HSE, these could be either offset or reinforced depending upon the relative position of the economy within the business cycle.”

The authors added: “The difficulty in proving a direct link between workplace injury rates and the regulatory activity is being able to identify the separate and additional contribution of HSE against a background of varying economic conditions and a continually evolving labour force.”

Whether an injury gets reported at all is a factor almost entirely out of HSE’s control. The report noted: “In terms of our overall understanding of whether an individual is likely to suffer a reportable workplace injury, occupation is clearly demonstrated to dominate all other factors. Being a staff association or trade union member and job tenure are the second and third most important factors in determining whether an individual has had a reportable workplace injury.” Union workplaces are safer workplaces. The fact that injury reports are more likely indicates without union vigilance, employers are already and illegally failing to record accidents.

What HSE can do and can claim credit for is workplace health and safety enforcement, catching safety criminals and preventing unsafe criminal activities. It is precisely these functions HSE is sacrificing in favour of a system which is sanction free and of questionable and certainly unprovable worth.

Worrying business

High on the list of HSE’s new plans is a mish-mash of alliances, partnerships and voluntary measures. HSE’s “Worker Involvement Strategic Enabling Programme” covers the worker-side, but has so far delivered only marginal improvements . The slicker “Business Involvement Strategic Enabling Programme” has introduced far more fundamental changes, including a wide-ranging list of anything-but-enforcement projects modelled to differing degrees on the hands-off approach developed under President Ronald Reagan in the USA.

HSC’s April 2006 Annual Business Plan 2006/07 says HSE will be “further promoting corporate responsibility, director accountability and health and safety performance reporting” as part of a package intended “to promote appropriate management of health and safety as an integral part of effective business management.”

Its flagship project is the Large Organisations Partnership Pilot (LOPP), which HSC says shall be “delivering the benefits from a more customer focused approach.” Over 1m workers will have their health and safety covered by the new partnership approach, which bears close similarities to US safety watchdog OSHA’s “Strategic Partnership Programme”, which OSHA says “moves away from traditional enforcement methods and embraces collaborative agreements.”

For now HSE says LOPP is “aimed at finding the most effective approaches to partnership working” (Hazards 93). But there is a suggestion that HSE is seeking a US-style shift away from traditional enforcement too.

At the launch of the scheme in October 2005, HSE deputy chief executive Justin McCracken said HSE would be “exploring some kind of formal recognition of good health and safety performance”, something the US has done through both its strategic partnerships and its even more contentious Voluntary Protection Programmes (VPP), which allow companies that can demonstrate certain safety systems are in place to escape almost all scrutiny by the official safety watchdog.

And then there’s alliances, the third element of OSHA’s voluntary system and now part of HSE’s alternatives portfolio. In January 2006, HSE signed a “groundbreaking partnership agreement” with EEF, the manufacturers’ organisation, which it says will promote effective health and safety management across manufacturing industries. Commenting on this first of its kind agreement between the safety watchdog and another organisation, HSE head of field operations, Sandra Caldwell, said: “This partnership agreement reflects a relationship of equals interested in a strong manufacturing sector with a healthy and safe workforce.”

Where there is a pay-off for companies and business groups in signing up to voluntary schemes – for example, less attention from HSE or heading off strict legal safety duties on directors – it won’t just be the scrupulous and committed firms that see the benefits. Rogues will also jump through all the administrative hoops and enjoy an enforcement holiday.

Sometimes it takes the threat of enforcement to ensure you don’t just get commitment, you get sufficient commitment to make a difference. Given the top directors of BP (www.hazards.org/bp) and Balfour Beatty (Hazards 92) both received massive pay hikes in the year they were found guilty of serious neglect with fatal consequences, these conflicting priorities have life or death consequences. Satisfied shareholders pays more than safe workers.

Don’t follow US

HSE might do well to pay close attention to criticisms of the USA’s experience before it goes further down the voluntary road to alliances, partnerships and formalised voluntary programmes.

In April 2006, a Florida plant of Tropicana Beverages, which had been designated by safety watchdog OSHA a “Star” member of the VPP scheme, agreed to a $146,250 (£82,500) penalty after two workers were serious burned in a flash fire. The Star programme is reserved for those companies with an exemplary health and safety system, and guarantees them only the most cursory attention from OSHA.

Before 1988, OSHA says it inspected the facility 41 times and issued citations for 265 violations. After entering the VPP scheme in February 2000, and prior to an accident last October, the site was inspected just 13 times and cited for only four violations. But when you don’t look, you don’t find. It took a serious accident to reveal Tropicana’s systems were not up-to-scratch – infact, were in serious disarray. An OSHA investigation started in October 2005, and resulted in two citations for “wilful” safety violations.

The company, part of PepsiCo, also received 10 serious citations for failing to establish and implement: a “management of change” programme; employee safety training; written procedures to maintain the integrity of equipment; and safety assessments to prevent employee exposure to chemical, hot work, confined space and electrical hazards.

This was a seriously dysfunctional company. But the hands-off arrangement meant OSHA only found out after two workers had been burned and disfigured.

It is not an isolated case. Unions point to cases of “bloody pocket syndrome”, where workers hide injuries because poor accident stats could jeopardise their job or their bonuses – and for the company could mean VPP status was jeopardised. There are many reports of companies neglecting to record accidents for the same reason. The accident statistics go down, it’s just the accidents that don’t.

Good employers will seek out and use advice. They always have. But all employers, good and bad, need official safety oversight. There is an issue of justice here. The Health and Safety at Work Act is a criminal Act, and safety criminals should be policed, caught and prosecuted. That doesn’t just mean the ones whose luck runs out and a worker is harmed, it means those who chance their arm but so far have got away with it. Criminal neglect should be punished.

HSE’s strategy is increasingly to inspect less, and to wait for deaths, injuries or cases of occupational disease to draw the attention of inspectors to a problem. The fall in preventive inspections, which could have spotted risks and required them remedied, means workers will die, will get sick and will be injured as a result of conditions that persisted because HSE was not there to stop them.

Justice at work is already a rare commodity. Over 30,000 fatal or major injuries were reported to HSE in 2004/05. In that year HSE took just 712 prosecutions. Even if you discount the far higher numbers made ill or killed by work-related diseases, this amounts to less than a 1 in 40 chance of a prosecution after a death or major injury at work.

Fewer inspections mean less justice. However HSE dresses it up, being killed or hurt at work has never been more unfair.

Sources

HSE statistics www.hse.gov.uk/statistics

Trends and context to rates of workplace injury, HSE Research Report RR386, 2005 • [pdf]

The Health and Safety Commission Annual Business Plan 2006/07. [pdf]

OSHA Strategic Partnerships

OSHA Voluntary Protection Programmes

OSHA Alliances

Self-reported work-related illness in 2003/04: results from the Labour Force Survey, HSE, 2005 [pdf]

Abba K, Clarke S, Cousins R (2004). Assessment of the potential effects of population changes in attitudes, awareness and beliefs on self-reporting of occupational ill-health, Occup Med (Lond), 54(4), 238-44.

Third European Survey on Working Conditions 2000, European Foundation, 2003

Results from the Health and Safety Module of the British Social Attitudes Survey 2001, HSE, 2002 [pdf]

Hazards website

Why HSE occupational disease statistics massively under-estimate the real health impact of work. See www.hazards.org/workandhealth and www.hazards.org/disease

Problems with HSE’s business-friendly strategy, including record keeping, the shift towards voluntary measures as opposed to enforcement action and increasing outsourcing of key functions. See www.hazards.org/totalsuckup and www.hazards.org/commissionimpossible

Why unions make work safer. See www.hazards.org/unioneffect and www.hazards.org/safetyreps