Protection racket
[Hazards 91, August 2005]

Britain has got one of the most unregulated economies in the industrial world. Tony Blair says so. But his government is still embarking on a danger deregulation exercise that could remove essential safety protections, says Hazards editor Rory O’Neill.

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We are living – and thanks to Britain’s hazardous workplaces, frequently dying – in a topsy-turvy world. The sort of world where it is seemingly impossible for skilled Whitehall mandarins to craft a law to jail killer employers, even when they have a decade to sort out the detail (Hazards 90).

The sort of world where the government pledges swift action on the perception of compensation culture, a problem it admits does not exist (Hazards 90). Also announced in the 17 May 2005 Queen’s speech was similar urgent action in this parliament to lift the “burden” of red tape from business, despite Britain already being, at least for business, a relatively lawless paradise.

On 24 May 2005, chancellor of the exchequer Gordon Brown told a Downing Street meeting of business leaders he would introduce “a risk based approach to regulation to break down barriers holding enterprise back.”

He added: “In a risk based approach there is no inspection without justification, no form filling without justification, and no information requirements without justification. Not just a light touch but a limited touch.” Under the chancellor’s plan, “businesses are invited to propose areas of regulation and its administration that are needlessly burdensome.” A Deregulation Bill is pencilled in for the second session of parliament.

The chancellor has already promised to cut inspections by regulatory agencies by 1 million a year, or a third. In terms of overall expenditure, Health and Safety Commission/Executive (HSC/E) is the second largest of the 63 national regulators, trailing only the Environment Agency.

The Health and Safety Executive (HSE) made 206,000 “regulatory contacts” last year. Tens of thousands fewer workplaces would get to see an inspector each year if HSE took its share of the chancellor’s planned inspection cutbacks.

Deregulating like it’s 1995 The new approach outlined by Gordon Brown was informed by the Hampton review of regulation and enforcement (1). At the request of the chancellor, Philip Hampton asked business “to identify ways in which the administrative burden of regulation on businesses can be reduced, while maintaining or improving regulatory outcomes.” The Hampton report, published in May 2005, calls for an end to “unnecessary” inspections, with resources instead used to provide advice. The only evidence Hampton cites to demonstrate health and safety is burdensome, however, is a February 2004 Institute of Directors (IoD) study – and even that found half of respondents had no real problem with safety (2). Hampton only found space in the bibliography for a larger May 2004 study from HSE showing over threequarters of businesses believed health and safety did not hamper their business and a similar proportion saying it was actually beneficial (3). It’s just 11 years since a massive official review of all UK health and safety legislation found health and safety laws were not a burden on business (4). In the mid-1990s, John Major promised a “bonfire of regulation” in a move aimed “at building businesses not barriers.” Health and safety was an early and important deregulation target, the government signalled in the November 1993 Queen’s speech. A month earlier, the then HSC chair, Frank Davies, has announced a review of 400 health and safety regulations was underway and called for evidence on “the benefits and costs of health and safety regulations… to ensure that these regulations do not impose unreasonable burdens on business” (Hazards 45). The May 1994 report of this review (4) was conclusive – it found that health and safety regulation and enforcement was not a burden, prompting TUC to say this “should mark the end of the deregulation fetish in health and safety.” By 1996, even Frank Davies – the business-backed HSC chair - was convinced. In a leaked memo to government ministers, he said: “Cutting the HSC does not reduce burdens on business” (Hazards 54).

Union dismay

The chancellor’s May 2005 statement caused consternation among unions. TUC said it “will remain vigilant to ensure that proper standards do not slip as a result of this initiative.”

Dai Hudd, assistant general secretary of HSE union Prospect, said the regulation review announced by the chancellor must not turn into a “cowboy’s charter.”

He said: “Injuries and deaths at work increased last year and we fear this trend will accelerate that process. The government must respect the experience and expertise of staff in the frontline and not follow a slavish employer-driven agenda. Effective regulation is not just about being nice to business, it is about maintaining standards.”

Paul Kenny, acting general secretary of the union GMB, said: “Any suggestion that we can build trust with employers who put profit and cutting corners before the rights and safety of workers is complete and utter nonsense. The road to the current legislation, which is totally inadequate, is littered with the broken bones, the blood and the bodies of workers killed by company negligence.”

Kenny added: “Mr Brown should go and talk to the widows and children and widowers of people killed and maimed by company mismanagement, by gross negligence of employers on health and safety”.

Bob Crow, general secretary of rail union RMT, said: “Gordon Brown is wrong in his neo-conservative belief that unregulated business will act responsibly and that reputation with customers and investors is more important to behaviour that regulation. Inquiries after all the recent major railway accidents have shown that the companies did act irresponsibly leaving many people dead. Railways are high risk and will only be safe if the risks are controlled and tightly regulated.”

And Ian Tasker of Scottish union federation STUC said the Work and Pensions select committee in 2004 had agreed with unions and concluded rigorous safety regulation and enforcement was necessary (Hazards 87), adding: “We would urge the chancellor and the Labour government to concentrate on delivering its previous commitment to protect workers before subscribing to business leaders’ red tape myths”.


“Absurd” safety

The government, though, is sticking to its guns. In a speech at the Institute of Public Policy Research (IPPR) on 26 May 2005, prime minister Tony Blair said: “Health and safety legislation is necessary to protect people at work,” adding: “As the OECD and the IMF have recently said, the UK is very lightly regulated by international standards.”

But he spoiled it a bit by picking out examples of sensible health and safety measures he though were “absurd” – like a nurse using a hoist to lift a patient who had fallen, a sentiment that runs counter to the central theme of HSE’s high profile Backs! campaign which says its aim “is to promote the use of lifting and handling aids as a means of reducing the incidence of back injuries at work”.

“We cannot guarantee a risk-free life,” the prime minister added, concluding: “We cannot respond to every accident by trying to guarantee ever more tiny margins of safety. We cannot eliminate risk. We have to live with it, manage it. Sometimes we have to accept: no-one is to blame.”

The prime minister is right – you can’t make risks disappear. But you can relocate them. So, if business is freed the burden of risk, then most of that risk will shift to the workforce in the form of more dangerous workplaces with less enforcement, more injuries and illnesses with less compensation.

TUC head of safety Hugh Robertson said he was “disappointed that the prime minister failed to differentiate between these who chose to take risks in their everyday lives, and those who have risks foisted on them by their employer.”

Risks hurt Senior nurse and UNISON member Shelley Quantrill, who suffered a severe back injury lifting a hospital theatre table, has been awarded £29,739 compensation. No risk assessment was carried out on the task by her employer South Tyneside Health Care NHS Trust. TGWU member Susan Harvey, injured trying to use a mobile hoist to move a disabled woman in her home, has been awarded nearly £20,000 damages. The care worker sued Walsall Council over its failure to carry out a proper risk assessment. Maths teacher Aileen Gilmour, 62, has been awarded £55,000 compensation after slipping on a chip outside her school canteen. She strained knee ligaments in the fall at Mearns Castle High School, Newton Mearns, and was unable to return to work. The judge ruled that East Renfrewshire Council should have foreseen the risk and guarded against it. Fiona Clark, a Metropolitan Police clerk, received £384,000 for a back injury sustained at work. She had not been given any manual handling training and there had been no risk assessment. Hazards compensation database

Averse to safety

Underpinning all these government pronouncements, are measures that assume it is not injuries and ill-health that is the top priority for workplace health and safety, but “red tape” and an irrational fear of risk.

On 13 July 2005, the new health and safety minister, Lord Hunt of Kings Heath, launched an online HSE debate “on the causes of risk aversion in health and safety” (right). The introduction to the HSE webpage asks: “So how do we stop excessive risk aversion, but still protect people?”

This emphasis on “risk aversion” rather than “risk” is not a matter of chance. The 1 million plus injured at work each year are not in the boardrooms of British companies. But the people informing government policy most certainly are.

The Hampton report, published in March 2005, and the template for the government’s deregulatory plans, was the product of an enquiry that solicited business opinion.

Even Hampton’s support for higher fines for safety offences is not entirely good news because it is tied to an assertion that higher fines “improve compliance and reduce the number of inspections required.” A 2004 research report from the Centre for Corporate Accountability presented compelling evidence that higher fines will not have a deterrent effect unless an employer believes there is a realistic prospect of getting caught through effective inspection (5).

A cut in real terms in HSE’s budget in both the 2002 and 2004 funding rounds means HSE is already struggling to retain trained and experienced staff. It has now dropped the postgraduate diploma in health and safety that new recruits were expected to obtain before they became full-fledged inspectors. Instead trainees will receive on-the-job training from already over-stretched inspectors, topped off with an NVQ.

The deadly reality of risk at work On 13 July 2005, the day health and safety minister Lord Hunt announced the launch of HSE’s “risk aversion” online debate, an inquest in Lough was considering the horrific death of 34-year-old Colin Blades. Colin died of massive injuries after a mechanical press delivered a force of 653 pounds per square inch on to his head and shoulders as he attempted to clear a blockage. The inquest was told how Linpac had been in breach of workplace safety law because the configuration of the machine made access to its interior possible. The production operative at Louth-based packaging company Linpac Containers Ltd was half-way through a 12-hour, 6pm to 6am shift when the tragedy happened on 4 August 2004. Paul Day, who worked with Mr Blades, said there were several reasons why the tragedy may have happened. “What you have got to realise is when you have got an agency worker with you on those machines your workload in theory doubles,” he said. He said that because Mr Blades had been working a “crossover” shift he would be “invariably more tired”. Health and Safety Executive inspector Simon Jones told the inquest Mr Blades was deemed an “experienced and safe” worker by his factory colleagues. “Part of managing health and safety is to undertake risk assessments on machines,” he said. “As part of that the company should look at the guarding standards on the machines in its factory to ensure you cannot get access to dangerous parts of the machinery.”

Retreating from the front

The Health and Safety Executive stole a lead on other regulators by being the poster boy for the government’s new risk tolerant approach. The HSC policy was spelled out in its February 2004 strategy (6). The document indicated HSE would review its inspection and enforcement strategy and concentrate more resources on advice, “providing effective support free from the fear of enforcement” (Hazards 86).

Launching its latest annual report (7) on 7 July 2005, HSC chair Bill Callaghan said: “The endorsement of the Commission’s strategy by the Hampton review was particularly welcome, as was the support for higher penalties. We must continue to seek and maintain the right balance of enforcement and advice.”

He added: “We will continue to make the case for sensible risk control measures that are sensibly applied, a process key to securing compliance with health and safety regulations.”

A March 2004 internal HSC paper, 'Becoming a modern regulator' (8), acknowledged “there has been deregulatory pressure from within government to reduce burdens on business, be clearer about the benefits of regulation, and more sympathetic to business needs." It added that "HSE has responded positively to the debate” (Hazards 88).


Damning evidence

The UK’s safety system is not in the best of health. Figures for 2003/4 showed workplace fatalities were up, major injuries are up and injuries requiring more than three days off work are up (9). There were 235 fatal injuries to workers in 2003/04, an increase of 4 per cent on the 2002/03 figure. The number of reported major injuries was 30,666, up 9 per cent. And reported over-three-day injuries to employees increased by 0.7 per cent, to 129,143.

Figures for 2004/5 showed that while overall fatalities fell to 220, this was largely due to a dramatic drop in service sector deaths, with deaths in the high risk, HSE enforced sectors were not showing this encouraging trend. Deaths in agriculture dropped from 44 in 2003/4 to 42 in 2004/5, but the earlier figure included 21 deaths in the Morecambe Bay cockling disaster. Manufacturing deaths soared from 30 to 41, up over 25 per cent. Construction deaths increased from 71 to 72.

Meanwhile, enforcement by the Health and Safety Executive dropped off dramatically in 2003/04, with the safety watchdog taking almost 1,000 fewer enforcement actions (Hazards 89).

HSE issued 11,295 improvement and prohibition notices, down from 13,324 the previous year. It brought 982 prosecution cases which it says “is around the level of recent years” and up six per cent on 2002/03 – although that was 15 per cent down on the year before (10).

The 2004/05 HSC annual report acknowledges that the watchdog has failed to meet all its major targets to reduce occupational and ill-health. It says there is “no clear evidence of overall progress since the base year in the incidence rate of fatalities and major injuries,” adds that for work days lost to work-related ill-health and injury “the data for 2003/04 shows no statistically significant progress since 2000-02, the closest available to the base year,” and says “there is no clear evidence of net progress since the base year with the incidence rate of work-related ill health.”

Safety’s not the problem Despite the government’s frequently stated and strongly worded concern about unnecessary, burdensome rules and an alleged culture of risk aversion in the UK, the majority of employers appear to be positive about workplace safety. Three out of four employers believe health and safety requirements benefit their companies as a whole, according to a MORI survey published by HSE in April 2004 (3). The survey of 3,000 members of the working and non-working public and 500 employers, found that employers rate health and safety in their top two most important workplace issues. Most employers also said they see health and safety as good for business and disagree that it puts a strain on profits. The majority of employers said that health and safety requirements benefit their company as a whole (73 per cent), save money in the long-term (64 per cent) and defend them against unjustified compensation claims (57 per cent). “Most employers also disagree with the contentions that health and safety requirements hamper their business (78 per cent) and are biased against small businesses (54 per cent),” the report said. This study is not cited in the Hampton report, although it is listed in the bibliography. Hampton instead cites a smaller February 2004 Institute of Directors survey (2), based on just 427 responses, that concluded “over 50 per cent” of businesses believed health and safety was a “significant” or “major” concern. Not mentioned in the Hampton report was the IoD finding that fewer than 1 in 5 businesses considered health and safety to have a major impact, or that almost half of respondents (48.7 per cent) said health and safety had only a “negligible” or “slight” impact on their business.

Attacking Europe

The prime minister has promised to make an assault on “red tape” a priority for the UK’s presidency of the European Union, which runs from 1 July until the end of 2005. One of the first acts of the government’s EU presidency was an 11-12 July Informal Council of Ministers meeting in Cardiff, hosted by trade and industry secretary Alan Johnson, to discuss “ways to cut back on red tape and regulation.”

The European Commission has already started its own review – and again, like the Hampton review, the workers at the dangerous end of workplace risks are not being asked for their views.

The introduction to the EU-wide online “Interactive Policy Making” survey is headed “Tired of being tied up in red tape?” (11). It goes on: “Unnecessary rules and red tape stand in the way of sustainable growth, deter business investment and hinder job creation.” This consultation will “ask business how they feel the business environment in the EU can be improved and the administrative burden reduced.”

The short tick box questionnaire requires the business respondents to select one or more of 17 categories, including health and safety, where rules and procedures are causing problems. A respondent must object to some rules or procedures or the form will not be accepted. There is no possibility of saying the rules and procedures do not cause a problem or are infact helpful. By design, 100 per cent of respondents to the EU survey will find some aspect of EU law burdensome. All it takes is a click of the mouse.


China UK?

The prime minister, in his May 2005 IPPR speech, said if we regulate to eliminate risks “we lose out in business to India and China, who are prepared to accept the risks.”

But accepting these risks would also have a high, almost certainly deadly, price. The fatal accident rate in both China and India is running at or above 10 work-related fatalities per 100,000 workers each year, more than double the rate for established market economies. The workplace fatality rate in the UK in 2003/04 was 0.81 deaths per 100,000 workers, less than a tenth the rate in either China or India.

While most evidence, including HSE surveys, shows business does not find health and safety regulation and enforcement a significant impediment to doing business, the real danger of the current assault on safety enforcement and inspection is that we needless abandon hard-won workplace standards and safe approaches and gain nothing but more workplace fatalities, more diseases and all the related human and financial costs (Hazards 90).

But it is not just actual in regulation or enforcement that will impact on health and safety. The repetition of the message that the laws are red tape, enforcement and inspections are burdens and combined the form, in the chancellor’s words, “barriers holding business back” tells business health and safety is not a top priority.

HSE this year failed to meet any of its major “revitalising health and safety” targets – deaths were up, accident were up and no headway was made on occupational ill-health or work-related sickness absence. It appears some of the damage may have been done already.

Deadly competition A 2005 report from the International Labour Organisation noted “fatal accidents at work rose from 73,500 a year to 90,500 in China, where there were nearly half a million work-related deaths in 2001” (12). A new analysis for the report, using 2001 data, found that industrialised countries with an economically active population of 419.5m, had 16,000 fatal workplace accidents in 2001. India, with a similar sized economically active group (444m) had 40,000 workplace fatalities. The figures for China were 90,500 deaths from an economically active population of 740.5m. ILO comments: “While it is estimated that 2.2 per cent of deaths in industrialised countries are caused by workplace related accidents or illnesses, the figure in China is 2.8 per cent.”

References

1. Reducing administrative burdens: effective inspection and enforcement, Philip Hampton, HM Treasury, March 2005. more

2. Real impact of red tape: Institute of Directors, February 2004. [pdf]

3. Attitudes towards health and safety: a quantitative survey of stakeholder opinion by MORI Social Research Institute, April 2004. [pdf]

4. Review of health and safety: Summary of findings and of the Commission’s response, May 1994.

5. Making companies safe: What works?, Centre for Corporate Accountability, September 2004. [pdf]

6. The strategy for workplace health and safety in Great Britain to 2010 and beyond. HSC, February 2004. more

7. Health and Safety Commission Annual Report and the Health and Safety Commission/Executive Accounts 2004/05. more

8. Becoming a modern regulator, HSC, 23 March 2004.

9. Health and safety statistics highlights, 2003/04, HSE, November 2004. more

10. Offences and penalties report 2003-2004, HSE. more • HSE Enforcement pages

11. Tired of being tied up in red tape? European Commission “Interactive Policy Making” survey.

12. World Day for Safety and Health at Work 2005: A background paper, ILO InFocus programme on SafeWork, 2005.

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Risk aversion row brewing The Health and Safety Executive has launched an online debate “on the causes of risk aversion in health and safety,” a move which is certain to highlight divisions about what some see as a “business-friendly” shift in the safety watchdog’s approach. Launching the initiative, health and safety minister Lord Hunt of Kings Heath said: “We must concentrate our efforts on the big issues that cause real harm and suffering and remember that excessive risk aversion does damage too. It hits organisational efficiency, competitiveness, restricts personal freedoms and damages the cause of protecting people from real harm. We know that something is seriously wrong when we read stories of schools asking children to wear goggles to play conkers in the playground.” The majority of early contributions to HSE’s online debate have been highly critical of comments from the minister and HSE. TUC head of safety Hugh Robertson said the emphasis on risk aversion when over a million employees are injured every year “is almost surreal”. He added: “It does surprise me when people talk about risk aversion. Companies may be averse to taking some financial risks, but they do not seem to be averse to taking risks with other people’s health.” Hilda Palmer of Greater Manchester Hazards Centre said: “If the issue is more about children crossing the road, playing conkers and hanging baskets, then let the Ministry for hanging baskets, conkers and road crossing deal with it, but to have the HSE - the workplace enforcement agency, in charge of failing to achieve Revitalising Health and Safety targets - host this debate now is an enormous insult to workers and their families.” Have your say! To register online and tell HSE what you think about “risk aversion”, go to the HSE risk debate webpage