A neutered watchdog
Hazards issue 111, July-September 2010
The Health and Safety Executive (HSE) is the official body responsible for policing criminal breaches of safety law. It’s just it rarely gets round to doing it, a new study has found. Sociologists Steve Tombs and Dave Whyte conclude government policy - aided by an HSE capitulation - is to blame.
The statistics unearthed by the Liverpool-based researchers are sobering. Their study, ‘Regulatory surrender: death, injury and the non-enforcement of law’, reports the number of HSE inspections has fallen by 69 per cent in the 10 years to 2008/09 and investigations have declined by 68 per cent. There has also been a 48 per cent reduction in prosecutions.
HSE WATCHING Dave Whyte and Steve Tombs warn HSE “has raised the white flag” instead of defending its enforcement role. Read the full interview
Dave Whyte, a reader in sociology at the University of Liverpool, explains: “The idea that health and safety has ‘gone mad’ does not seem to hold true. The collapse in inspection, investigation and enforcement has dramatically reduced the chances of businesses being detected and prosecuted for committing safety offences.
"Most serious injuries now are not even investigated. For example, only a third of amputations are now investigated by the Health and Safety Executive.”
Co-author Steve Tombs, a professor at Liverpool John Moores University, comments: “HSE's senior management have effectively surrendered to the government's lighter touch regulatory agenda. Not only is the agency now more vulnerable to further 'reviews' of regulation, but workers too are increasingly vulnerable - as managements are far less likely to respond to workers' demands to comply with the law in the absence of a credible enforcement threat.”
He said the evidence, obtained through freedom of information requests, “is unequivocal” with the watchdog itself bearing some of the blame. “HSE has ceased calling for the resources it knows it needs to regulate effectively,” he says. “It has tied itself up in knots trying to justify to its own staff, to workers, to campaigners, to anyone and everyone that ‘less is more’.”
It’s a point echoed by Whyte, who told Hazards a halving of prosecutions in 10 years “is a serious enough indictment of HSE’s record. But the gradual disappearance of inspections and investigations means that HSE has little chance of even keeping track of what is going on in the workplace, never mind doing anything about it.”
PAY OFF A well resourced and active enforcement agency makes work safer and healthier. But on budget day in June, HSE unions Prospect and PCS warned that HSE’s effectiveness is being hampered by the watchdog’s inadequate budget and poor pay. Photo: Stefano Cagnoni/Prospect
Criticising the “surrender” by HSE’s leadership, Whyte says “it is difficult to imagine how the chief of any other public authority could defend such an abysmal record without being thrown out of office.”
He added that while official inspections in environmental and food safety have declined rapidly too, “they have not fallen at as fast a rate as in health and safety or anything like it.
“The evidence shows clearly that HSE has raised the white flag a lot more readily than the other regulators charged with protecting our safety.”
As HSE’s enforcement activity wanes, so does any hope of a deterrent effect, says Tombs. HSE’s own research shows that the majority of legally “reportable” injuries are not reported by employers, he says, so “can we really expect them to put the time, effort and money into making workplaces safer and healthier without being forced to do so?”
According to Whyte “a collapse in enforcement creates infinite chances to ignore the law when times are tight or when pressures to get on with the job are applied.”
Policy disaster
HSE’s alternatives to enforcement action – a lot more advice and a lot less action – “all boils down to one principle: ‘trust me!’,” says Whyte. An enforcement agency cannot rely on trust, he says. “HSE has bought into the idea that with the exception of a few bad apples, businesses left to their own devices could be basically trusted to comply with the law. The logical conclusion is that we only need to target a small minority of criminal businesses and leave the rest alone.”
Both academics say this amounts to self-delusion by the watchdog, with Tombs commenting HSE has to defend the approach “despite the evidence – or they would struggle to justify their existence.” They rubbish the government claim that health and safety “red tape” is a burden on business, with Tombs dismissing it as “a classic case of a lie being repeated so often that it assumes the status of truth. But, empirically, there is simply no evidence for it – quite the opposite in fact.”
Most of the costs of work-related injuries and ill-health are borne by society and individuals, he points out (Hazards 106), so while “employers produce death, injury and illness on the way to making profits, we – individuals and society as a whole - are subsidising those profits... Any further move from law and enforcement will simply increase these costs, increase this subsidy, and increase the price paid by working men and women and their families.”
HSE injury stats don’t add up - official
Health and Safety Executive (HSE) figures on the number of people killed at work in Britain fell last year to a record low. The HSE provisional data released on 30 June 2010, which exclude work-related road, marine, air accident deaths, work-related deaths of members of the public and the entire occupational disease death toll, show that 151 workers were killed between 1 April 2009 and 31 March 2010 compared to 178 deaths in the previous year and an average number over the last five years of 220 deaths annually.
The holes in HSE’s occupational injury and disease statistics came in for strong criticism in a May 2010 UK Statistics Authority report. The Authority checked HSE’s figures against a code of practice for official statistics and indicated they do not make the grade, concluding “HSE does not produce an overall figure for work-related fatalities in Great Britain.” It recommended HSE “investigate the feasibility of producing statistics on the total number of work-related injuries and fatalities.”
Fatal injury statistics 2009/10, HSE, 30 June 2010. Assessments of compliance with Code of Practice for official statistics - Statistics on Health and Safety at Work (produced by the Health and Safety Executive), Report Number 42, UK Statistics Authority, 27 May 2010 [pdf].
Whyte reinforces the point. “You won’t see the true costs of health and safety on any company profit/loss account only because the legal and political systems allow those costs to be ‘externalised’ - fobbed off on the rest of us. If the consequence of lighter regulation in the UK will be that employers act with impunity, the only possible outcome is that the burden of costs to families is increased.”
And he says there can be catastrophic consequences, as “light touch” regulation “certainly increases the chances of a major disaster occurring.
“This was the case in the Deepwater Horizon disaster, and lax regulation has been a causal factor in so many industrial disasters. Clearly BP will bear a big cost burden in this case, but even if the company goes under, its owners will pay much, much less than the combined burden experienced by the families of the bereaved, the clean up and the loss of earnings as a result of the catastrophe, not to mention pension fund losses.
“In other words, light regulation creates a heightened risk of a high cost burden for all of us.”
They dismiss claims, based official HSE fatality figures which this year reported a “record low” 151 worker deaths, that things are getting better. “The ‘151 deaths’ headline says more, frankly, about their public relations strategy than their ‘enforcement strategy’. It’s spin over substance, sadly,” says Tombs. Last year’s 393 work-related fatalities to members of the public are not included. And thousands of other workplace deaths are missing, he says, including those recorded as air or sea deaths and work-related road traffic deaths. The entire occupational disease death toll – estimated at 50,000 deaths a year – is hidden from view.
Economic argument
Deregulation is not the price of economic survival in a global economy, says Tombs. “As the fifth largest economy in the world, Britain should be developing its potential for competitive advantage in safe, clean highly skilled sectors, rather than elbowing its way to the front in the race to the bottom,” he says.
Bad on safety, terrible on health
Enforcement action by the Health and Safety Executive (HSE) has plummeted on almost all major indicators, the watchdog has conceded – and it is failing nearly entirely to address workplace health breaches.
A paper to HSE’s 30 June 2010 board meeting notes that prosecutions on health issues are exceedingly rare – an HSE guesstimate indicates they are outnumbered 7-to-1 by safety prosecutions - despite work-related ill-health causing five times as much lost time as that resulting from injuries. HSE estimates work-related diseases also outnumber officially reported workplace injuries by five to one. It means negligent employers causing often fatal long-term occupational diseases at least 35 times less likely to end up in dock as those injuring workers.
The watchdog appears to have little confidence it can remedy this enforcement bias, with the report noting “careful consideration of the effort put into prosecution activity needs to be made as to what the return of our efforts will be. It is not, therefore, an ‘open and shut’ case that automatically we should put more effort into prosecution activity for health if it displaces other activity, eg. service of notices that may be more efficient and effective way of improving standards.”
Review of enforcement by FOD, paper to the HSE board, 30 June 2010 [pdf].
Whyte adds: “The argument that there is a direct link between undermining the health conditions of workers and boosting ‘economic health’ is one of the most outrageous yet most often repeated lies of our time.
"There is no simple relationship between regulatory standards and economic success. In fact, we could point to other countries in which the standards of protection and remuneration enjoyed by workers is relatively high, where the burden of tax on business is relatively high, where employers are expected to make more of a contribution to workers’ welfare, and at the same time, has maintained a competitive economy. Germany is a good case in point.”
According to Tombs: “Based upon the research evidence, we know that the one thing that will deliver safer and healthier workplaces is strong worker representation in the workplace – that is, a system of union safety reps functioning through properly constituted safety committees.” But he adds “we also know that the activity of these reps and committees often needs the support of a credible enforcement threat beyond the workplace – the inspectors of the HSE.”
Directors need statutory safety duties
Most company directors are not taking health and safety seriously at boardroom level, so statutory directors’ duties on safety are the only alternative, the findings of a government ordered review indicate. more
He says: “The real ‘enemy’ is the employer who cuts corners and risks life and limb – not the HSE. And the HSE is likely to come under further attack as a result of the ongoing review of regulation and the public sector funding cuts. So we need to keep up the criticism of HSE’s senior management - HSE must be held accountable and do that with which it is charged, which is to enforce the law. But at the same time we must defend and protect the functions of inspection and enforcement – because these are functions that most on-the-ground inspectors want to fulfil.”
The malaise afflicting HSE must be challenged by unions – who have three representatives on the HSE’s board – Tombs and Whyte add. They say the challenge is not just to ensure the enforcement system is used, it also needs to be reformed.
“Taking health and safety offenders through the courts consistently, to conviction, is the key way of sending the message that this is law that counts,” says Tombs. Fines which are linked to turnover and jail time where appropriate will further underscore that we are dealing with criminal law here.
“Sadly, there are many employers who will take little notice of anything else. As was once famously said of company directors: a few go down, they all sit up.”
Regulatory surrender: death, injury and the non-enforcement of law, Steve Tombs and Dave Whyte, Institute of Employment Rights, July 2010. Purchase details from IER, The People's Centre, 50-54 Mount Pleasant, Liverpool L3 5SD. 0151 702 6925 or email IER
The Hazards interview: Regulatory surrender
In July 2010, Hazards interviewed Professor Steve Tombs of Liverpool John Moores University and Dr David Whyte of the University of Liverpool.
Hazards: You have looked at trends in health and safety enforcement in the UK - what did you find? Is health and safety properly enforced in the UK?
Steve Tombs: By any indicator you choose, health and safety enforcement is in decline in Britain. It has never been effectively enforced. When Health and Safety at Work etc Act was passed in 1974, the stated ideal was that the average workplace would get a visit from an inspector once every four years. At the time, the average was about once in every seven years. Now it is about once in every 38 years [Hazards 110]. Over the past decade, prosecutions, notices, investigations, inspections have all fallen dramatically. The evidence, based upon Freedom of Information requests to access the Health and Safety Executive’s (HSE) own internal data of its enforcement activities, is unequivocal.
Dave Whyte: HSE’s enforcement record is abysmal. The issue here is not only the halving of prosecutions in 10 years, which is a serious enough indictment of HSE’s record. But the gradual disappearance of inspections and investigations means that HSE has little chance of even keep track of what is going on in the workplace, never mind doing anything about it.
Hazards: Why do you say there has been "regulatory surrender" in the UK? Have you evidence to justify this claim?
Steve Tombs: Over the past decade, HSE has ceased calling for the resources it knows it needs to regulate effectively. It has bent to every Governmental whim for lighter touch regulation. It has tied itself up in knots trying to justify to its own staff, to workers, to campaigners, to anyone and everyone that ‘less is more’. But the effect of this self-flagellation has not been to endear itself to Governments, rather to leave it looking weaker and more vulnerable – so much so that it has even said that it ‘welcomes’ Lord Young’s recently announced review of regulation. It is like a turkey singing “I wish it could be Christmas every day”.
Dave Whyte: Inspections and investigations at one-third the level they were 10 years and prosecutions falling by 48 per cent, is pretty clear evidence of a surrender to the anti-regulation rhetoric of successive Labour governments. It is difficult to imagine how the chief of any other public authority could defend such an abysmal record without being thrown out of office.
In its defence, the assault on the HSE is of course part of a much larger crisis in business regulation and a broader political assault upon regulatory agencies. Inspections and prosecutions in environmental and food safety have declined rapidly too. But they have not fallen at as fast a rate as in health and safety or anything like it. The evidence shows clearly that HSE has raised the white flag a lot more readily than the other regulators charged with protecting our safety. The Hampton Report in 2005 called for a 33 per cent cut in inspections across all forms of business regulation. HSE had already achieved this in the three years before the Hampton Report was published!
The spinelessness of senior management is summed up by the official position of the HSC [the Commission, since replaced by the HSE Board] that the Hampton Agenda had to be embraced as an “opportunity not a threat”. In the effort to bend over backwards to please government, it has backed itself into a corner.
Hazards: Why is health and safety enforcement important? Isn’t it a minor concern when most workers are now employed in the service sector and not in traditionally hazardous industrial jobs? Does regulation work?
Steve Tombs: If employers know that the law has fallen into disrepute, and that there is no credible threat of it actually being enforced, why would they follow it? And why would they take seriously the demands of workers and safety reps to follow it? Regulation was introduced because protecting workers health and safety costs money – and if left to themselves, most employers for most of the time simply will not choose to spend this money. Their primary, ‘natural’ concern is with the bottom-line. So we know why regulation was necessary in the first place, and those reasons have not gone away. And we also know that regulation – by which I mean a visible inspectorial presence, with a credible threat of prosecution – works.
As for the shift to services away from mining, shipbuilding, construction and the like – we should be even more worried by this in the sense that occupational ill-health is a far greater killer than injury. In many respects, the hazards in traditional injuries are more obvious – even if they are not effectively managed or regulated. Shift to services, and there you find the silent killers – the carcinogens, for example, to which hundreds of thousands of workers from domestic cleaners to ‘clean’ recycling jobs are exposed on a daily basis. And this is not to mention the long-term debilitating effects of the over-use of computers, of rising levels of workplace stress, of teachers’ exposure to asbestos in old school buildings, of regular exposure to noise, of chronic back pain. The list, sadly, is almost endless – and they are all problems of supposedly ‘safe’ jobs in the service sector.
Let me make one more, rather basic, but often overlooked point which relates to employers’ attitudes to safety law – and why regulation and enforcement is needed. We know that significant numbers of injuries of all kinds do not even get reported by employers to HSE – even though it is a legal duty to do so. So, for example, a piece of research commissioned by HSE in 2007 found that the as few as 30 per cent of the injuries that should be reported, are reported. If employers fail so routinely to comply with this most basic legal duty, can we really expect them to put the time, effort and money into making workplaces safer and healthier without being forced to do so?
Dave Whyte: There is a basic need for a deterrence that needs to be reiterated. Whilst deterrence has a very limited impact upon the types of offenders that fill up our prisons, it is much more likely to have an impact upon companies and upon senior managers and directors. This is basically because companies and senior managers are able to weigh up the chances of being caught and the consequences for them against the benefits. Of course not every employer does this, but a collapse in enforcement creates infinite chances to ignore the law when times are tight or when pressures to get on with the job are applied.
Hazards: HSE says it is using alternatives to enforcement like working with shareholders, providing advice and issuing enforcement notices to improve safety. Is this true, and does HSE really believe it? If not, why not and why is HSE pursuing this path?
Steve Tombs: HSE is definitely using alternatives to prosecution – this is what being a ‘modern regulator’ is all about apparently. Do they believe it? Hard to say, but I reckon that those at the top of the organisation have been saying the same things for so long that they may have convinced themselves. And to be honest, as they have so few resources actually to apply the law, they virtually have to say these other techniques work – despite the evidence – or they would struggle to justify their existence. But they haven’t convinced at lot of the inspectors on the ground – they know what works, and it is proper law enforcement.
The 2004 Work and Pensions Select Committee knew this too, hence its conclusion: “The evidence supports the view that it is inspection, backed by enforcement, that is most effective in motivating duty holders to comply with their responsibilities under health and safety law. We therefore recommend that the HSE should not proceed with the proposal to shift resources from inspection and enforcement to fund an increase in education, information and advice.”
Dave Whyte: The alternatives to enforcement offered by HSE all boils down to one principle: “trust me!” Trust employers to come to their senses and realise that good safety is good for business; and trust HSE to convince employers that good safety is good for business. The only problem with this is that the experience and the contribution of workers’ safety representatives, far from being trusted, is positively excluded by many of the new partnership approaches to seeking compliance. HSE has bought into the idea that with the exception of a few bad apples, businesses left to their devices could be basically trusted to comply with the law. The logical conclusion is that we only need to target a small minority of criminal businesses and leave the rest alone.
HSE calls this ‘earned autonomy’ and denies that it practices this. But the effect of the crisis in enforcement is that HSE can do little else now than target a small minority. If HSE did not adhere to the “trust me” principle, then it could not possibly justify its rates of inspections and investigations at a third the level they were 10 years ago.
Hazards: HSE says its new figures reveal workplace fatalities are at a record low. Doesn't this mean its enforcement light approach is working and HSE doesn't need more resources to make workplaces safer and healthier?
Steve Tombs: HSE’s injury statistics are simply not fit for purpose – and they know that. Their latest headline’ figure’ for worker deaths – 151, which they press released as a “record low” - fails to mention 393 deaths to members of the public in the same year. Fails to mention uncounted deaths in gas, airline, and maritime work. Fails to mention the one thousand plus workers who die whilst driving as part of their job. Fails to mention the 50,000 people who die every year in Britain as a result of occupational ill-health. The ‘151 deaths’ headline says more, frankly, about their public relations strategy than their ‘enforcement strategy’. It’s spin over substance, sadly.
What is more, the research evidence clearly points to the crucial role of enforcement in making workplaces safer and healthier. The most detailed and comprehensive review of evidence – a 2004 study by Davis, commissioned by HSE – summarises this exhaustive review succinctly: “the weight of international research supports the proposition that legislation, backed by credible enforcement, is the primary driver of corporate commitment to OHS”.
Dave Whyte: The truth is that most fatalities don’t come close to being touched by enforcement. The enforcement rates that we identify in the book are bad enough, but when we consider the reality of enforcement of the types of illnesses and long-term injuries that are associated with the service sector - the kinds of illnesses that Steve has mentioned - then the problem takes on new dimensions. A tiny proportion of the total of occupational illness cases are investigated. And less than 1 per cent are prosecuted. If they were to be properly investigated and enforced, as we should expect them to be, then HSE would need to be given the resources on par with other law enforcement agencies.
Hazards: The government says health and safety is a burden on business and wants to relieve this burden, and says it wants to “tame” regulators including HSE. Is the government right, and what will be the consequence of lighter regulation, self-regulation and/or enforcement and tamer regulators?
Steve Tombs: The idea that health and safety is a burden on business is a classic case of a lie being repeated so often that it assumes the status of truth. But, empirically, there is simply no evidence for it – quite the opposite in fact. Take the financial costs of poor health and safety – ie. the costs of injury and ill-health. HSE’s own data indicates that these breakdown as follows: individuals bear a cost of up to £14.7 billion per annum from injuries and ill-health; ‘society’ bears up to £31.8 billion per annum; employers – those responsible for managing the risks, remember – bear up to £7.8 billion per annum. So the lowest burden is being met by business. Or, to put it another way, as employers produce death, injury and illness on the way to making profits, we – individuals and society as a whole - are subsidising those profits. Nice work if you can get it.
Any further move from law and enforcement will simply increase these costs, increase this subsidy, and increase the price paid by working men and women and their families. It is as simple as that.
Dave Whyte: We should be very open about this. Health and safety involves a cost. If the cost is not borne by business, it will remain a burden on the rest of us.
And although the current distribution of costs - families bear the main costs, taxpayers cover some health and welfare costs and business occasionally stumps up a symbolic compensation payment - seems like a natural state of affairs, actually it is only sustained by a sleight of hand. This distribution of costs is a social arrangement that has evolved over a couple of centuries. You won’t see the true costs of health and safety on any company profit/loss account only because the legal and political systems allow those costs to be ‘externalised’ - fobbed off on the rest of us. If the consequence of lighter regulation in the UK will be that employers act with impunity, the only possible outcome is that the burden of costs to families is increased.
In capitalist social systems that enable the real costs of business to be externalised, the burden will never be fully borne by business. In systems of light touch regulation, clearly there will be less incentive to comply with all forms of law, but the truth is that the burden of costs can be avoided by business no matter what type of regulation applies.
Light touch regulation also certainly increases the chances of a major disaster occurring. This was the case in Deepwater Horizon disaster, and lax regulation has been a causal factor in so many industrial disasters. Clearly BP will bear a big cost burden in this case, but even if the company goes under, its owners will pay much, much less that the combined burden experienced by the families of the bereaved, the clean up and the loss of earnings as a result of the catastrophe, not to mention pension fund losses.
In other words, light regulation creates a heightened risk of a high cost burden for all of us. But even in the most extreme circumstances - and remember that Obama lifted BP’s limited liability protections guaranteed in US law - business will never bear the full costs of its social impact.
Hazards: Who pays the price of under-enforcement of health and safety and is this the unavoidable price of working for a living in a competitive, global economy?
Steve Tombs: The real price is paid by people whose lives are blighted by serious illness and debilitating injury – thousands every year. The greatest price of all is paid for by the families who lose their loved ones from fatal injuries and fatal illness. That price is economic, for sure, but it is psychological and emotional. This may sound so obvious, but in fact the experiences of those injured, made ill or indeed bereaved by work are almost entirely absent from discussions about the ‘burden’ of regulation. Yet they carry the greatest, and the most unimaginable, burden, usually silently.
It is simply not the case to say this is a price that must be paid for competing in a global economy. Were that the case, then Britain might just as well get rid of all labour protection, social security, minimum wage laws, not to mention environmental and consumer protection - anything which ‘interferes’ with business activity. Then we could compete with the unregulated sweatshops that blight the economies of the world. As the fifth largest economy in the world, Britain should be developing its potential for competitive advantage in safe, clean highly skilled sectors, rather than elbowing its way to the front in the race to the bottom.
Dave Whyte: The argument that there is a direct link between undermining the health conditions of workers and boosting ‘economic health’ is one of the most outrageous yet most often repeated lies of our time. There is no simple relationship between regulatory standards and economic success. In fact, we could point to other countries in which the standards of protection and remuneration enjoyed by workers is relatively high, where the burden of tax on business is relatively high, where employers are expected to make more of a contribution to workers’ welfare, and at the same time, has maintained a competitive economy. Germany is a good case in point.
On the other hand, we could just accept this it is true. And, even though there is no evidence that it would work, speculatively establish UK Plc as an Export Processing Zone, remove all protections, introduce bonded labour for those who commit minor criminal offences and make everyone work 12 hour shifts, 7 days a week just to see if that might make us a little bit more competitive.
Hazards: Are any other countries better at health and safety enforcement and how?
Steve Tombs: According to the 2010 Health and Safety Risk Index (HSRI), Britain lags down at 30th in health and safety performance. By contrast, Denmark, Sweden and Finland sit at or near the top of this ranking. Now, while each of those countries is different, and while each of them has its own problems, none of them have embraced the policies of neo-liberalism as enthusiastically or for as long as have British governments.
So in those countries there is, for example, still a sense of social welfare and social solidarity, which places a value on protecting workers health and safety. There is still a commitment to workers’ rights on the ground and to involvement of workers’ organisations in public and economic policy - these are still governments where there is still some acceptance of a moral, economic and social case for effectively regulating workplace health and safety. Make no mistake, these systems are far from perfect and have their own challenges – but they have held up to the supposed logic of globalisation much more effectively than has been the case here.
Dave Whyte: Ultimately it is workers, through their trade unions and safety representatives, that are the real safety regulators. In Victoria, Australia, this is recognised in law where safety reps have the power to impose a Provisional Improvement Notice. What this means is that workers ultimately have the power to stop the job when there is an imminent danger. It also means that safety reps must work more closely with the regulator. The regulator must advise safety reps on how to issue pins and given them the support to do so. And, if the employer requests it, the regulator has to make an immediate visit to the site.
If there was a similar system in place here, it would bring the regulatory role of the safety representative to life and would provide the basis for new forms of co-operation between workers, the unions and the HSE. This is not to idealise what happens in Australia – the ongoing case of Ark Tribe shows that there are also some pretty draconian safety practices particularly in construction – but it shows that there are alternatives to what we do now.
Hazards: What is needed to deliver safer, healthier workplaces in the UK?
Steve Tombs: Based upon the research evidence, we know that the one thing that will deliver safer and healthier workplaces is strong worker representation in the workplace – that is, a system of union safety reps functioning through properly constituted safety committees. In general, this evidence points to up to 50 per cent fewer injuries where these are in place. But we also know that the activity of these reps and committees often needs the support of a credible enforcement threat beyond the workplace – the inspectors of the HSE.
HSE has fallen so far into disrepair that it is hard to know where to start – so it is worth returning to the recommendations of the 2004 Select Committee which examined its work. That inquiry recommended that the number of inspectors in HSE’s Field Operations Directorate – its main enforcement arm - be doubled, and that substantial additional resources were needed to fund this. It also argued that HSE should reverse the “low level of incidents investigated” – a trend which our report finds has since accelerated. Investigation is crucial, because it is a way of gathering evidence for future prevention, and also a means of delivering accountability. And when less than one in ten major injuries is even investigated, as is now the case, there is little learning or accountability.
By accountability, I mean that if there is a criminal case to answer – and HSE estimates that 70 per cent of serious incidents are the result of management failure – then this must proceed. Taking health and safety offenders through the courts consistently, to conviction, is the key way of sending the message that this is law that counts. Fines which are linked to turnover and jail time where appropriate will further underscore that we are dealing with criminal law here. Sadly, there are many employers who will take little notice of anything else. As was once famously said of company directors: a few go down, they all sit up.
Dave Whyte: Clearly more diligent and consistent enforcement alone is not going to make workplaces safer. But without a credible threat of enforcement or a realistic chance that an inspector may pay a visit, how can we expect employers to take their legal responsibilities seriously? And how can we expect employers to take safety representatives seriously when they point out that they are breaking the law? Inspection, investigation and law enforcement can make workplaces safer both because it gives safety representatives some leverage, and because it gives employers a reason to make workplaces safer.
There are about three times as many of the new Police Community Support Officers (PCSO) in London as there are HSE Inspectors in the whole of the UK. Across the country 16,000 of those PCSOs were introduced between 2003 and 2007, in the same period as HSE lost more than 200 – or 13 per cent - of its inspectors. So there is no question that we have the resources to fund an inspectorate adequately and to maintain a credible level of scrutiny and enforcement.
Hazards: What advice would you give to unions and health and safety campaigners?
Steve Tombs: Unions and campaigners know the situation better than myself, as their day to day work is spent dealing with the effects of the enforcement trends we have been describing in our work. But if I have a few messages, it would be these.
The real ‘enemy’ is the employer who cuts corners and risks life and limb – not the HSE. And the HSE is likely to come under further attack as a result of the ongoing review of regulation and the public sector funding cuts. So we need to keep up the criticism of HSE’s senior management - HSE must be held accountable and do that with which it is charged, which is to enforce the law. But at the same time we must defend and protect the functions of inspection and enforcement – because these are functions that most on-the ground inspectors want to fulfil.
As we all know, the current economic and fiscal situation is dire. Unemployment will increase as Government cuts kick in. there will be temptations, and threats, along the lines that health and safety is a luxury – and that a dangerous job is better than no job at all. No-one has the right to accept that logic, because we put others, not just ourselves, at risk by doing so.
Pressure needs to be exerted on union leaderships to ensure that TUC members of the HSE Board consistently and strongly oppose enforcement-light trends. Trades unions still have a formal role in policy making, and they must perform that in a way that is accountable to their members.
Lastly, and most obviously, keep reading Hazards magazine – and make sure your unions do not cut back on subscriptions as funding cuts bite. It’s the one place which consistently cuts through Government and HSE management spin. So it provides the tools for on the ground campaigns and activity, and we need it now more than ever.
Dave Whyte: Keep on fighting! Without strong union representation, there are no safeguards for workers. And keep on supporting Hazards magazine. It is the only source of information that is not scared to challenge the HSE on its abysmal record. The Hazards Movement is the most energetic and active ongoing trade union campaign in the country, and it needs to maintain this energy because there are definitely going to be difficult times ahead.
This fight needs to be conducted inside the unions as well. We should not forget that the Health and Safety Executive Board has three trade union representatives. This raises some difficult questions. How have our trade union representatives used their position to challenge the HSE’s implementation of the polar opposite of what its members demand? What is the point of having representation on the board of an organisation that is undermining its members’ interests and placing them at risk? But those are the questions that need to be confronted openly and honestly in the trade unions.
Directors need statutory safety duties
Most company directors are not taking health and safety seriously at boardroom level, so statutory directors’ duties on safety are the only alternative, the findings of a government ordered review indicate.
The Health and Safety Executive (HSE) board was instructed in 2008 to oversee an independent evaluation of voluntary measures taken to strengthen director leadership of health and safety. The newly published findings show that although awareness of the Institute of Directors (IoD)/HSE voluntary guidance had by November 2009 increased since a similar survey completed in September 2008, it was still only a minority (36 per cent) that had any idea of the existence of the October 2007 guide. Fewer than one in five (19 per cent) had read even a part of document, and less than half of these (48 per cent) took any action as a result.
While most directors (65 per cent) felt additional guidance would increase “the amount of effort and attention they personally gave to ensuring health and safety,” about half also pointed to greater penalties for directors (51 per cent) and new legislation (48 per cent) as likely to focus their minds. “The majority of directors believed that each of the measures would increase the amount of effort and attention that they devote to health and safety,” the report notes. Over a third of directors of large organisations thought new legislation “would make a significant difference,” as did one in five small organisations.
TUC head of safety Hugh Robertson said: “This report confirms what we already knew - that most company boards don’t know about the voluntary guidance and fewer still care to act on it. Company directors have had approaching three years to prove they are willing to make health and safety a boardroom issue. They’ve done nothing of the sort – most have done nothing at all – so the case for statutory duties is now unanswerable.”
The report of the Steering Group overseeing an independent evaluation of measures taken to strengthen director leadership of health and safety, HSE, June 2010. [pdf].
A neutered watchdog
Contents
• Introduction
• Policy disaster
• Economic argument
Extra features
The Hazards interview:
Regulatory surrender more
Directors need statutory safety duties more
Hazards 111 contents