HSE looks less, counts less and couldn’t care less

Hazards special online report, December 2013

When the official regulator professes concern about the “the risks of over-compliance” with safety laws rather than the deadly risks to workers, it is clear the Health and Safety Executive is tamely obeying – and sometimes going beyond - government orders, warns Hazards editor Rory O’Neill.

SENSELESS ACT Ray Burns, pictured with his granddaughter Emily, died after his employer ignored the welfare regulations. Six days after the recycling firm’s November 2013 criminal prosecution, HSE was advising businesses how not to “over-comply” with the potentially life-saving law. more

Raymond ‘Ray’ Burns left for work at UK Wood Recycling Ltd near Redcar on 19 December 2008. He didn’t return home. The 43-year-old load inspector had been struck by a load shovel and run over.

There was no mystery about the reasons for the death of the father of two. Workers were unprotected from the dangers of constantly moving vehicles. There had been previous incidents where vehicles had collided. Workers had reported near misses.

On 12 November 2013 UK Wood Recycling Ltd was fined £200,000 plus £34,000 costs after pleading guilty to a criminal breach of the Workplace (Health, Safety and Welfare) Regulations 1992. HSE inspector Bruno Porter said: “A conscientious and hard-working man has lost his life in this senseless way.” He added: “The risks of serious injury and, all too frequently, death, resulting from the failure to control the safe movement of vehicles and pedestrians are widely recognised.”

You are too kind

Within a week of the criminal prosecution of UK Wood Recycling Ltd, HSE set out to undermine the law that could have prevented the “senseless” loss of Ray’s life. An 18 November 2013 HSE news release announced a revised official code explaining the regulations would “make it easier for employers, building owners, landlords and managing agents to understand and meet their legal obligations and so reduce the risks of over compliance.”

SPOT THE INDIFFERENCE

After the TUC and Hazards exposed how an HSE news release was advising firms how to care less about the welfare of their staff, a reworked news release was swiftly issued, removing the offending sentence. HSE blamed “drafting errors”.

The TUC responded furiously. TUC head of safety Hugh Robertson retorted: “Are they serious? Did they think before writing this? What possible risk is there in employers ‘over complying’ with the welfare regulations?” He added: “Over-compliance is actually ‘good practice’ and should be encouraged. Why on earth is a regulator coming out with this complete nonsense?

“Union members know where the problem lies and it is not with over compliance. It is with the real problem of under compliance, with employers routinely flaunting the Code. How many buildings have windows that cannot be cleaned safely, no traffic routes for forklifts?”

It is a sentiment that will have resonance with the family of Ray Burns, killed when his employer disregarded these exact regulations and failed to protect him from industrial vehicles on site.

After criticism from TUC and Hazards, a reworked version of the news release was issued by HSE, with the offending passage excised. Although the HSE concession was welcome, said TUC’s Hugh Robertson, it was “worrying” HSE was operating in a climate “where it was ever thought appropriate to come up with nonsense like that and I hope that they will be more willing to actually encourage employers to go beyond compliance and promote good practice. That after all is what good health and safety is all about.”

A Hazards examination of HSE’s enforcement database has revealed that HSE has plenty to worry about. Since January 2009, HSE records show 28 firms have been prosecuted by the watchdog for criminal breaches of the regulations, 39 have been found to be so hazardous work was stopped immediately by HSE and a further 1,381 received improvement notices because of a criminal failure to meet the basic minimum legal standards laid down by the regulations.

Costly mistake

Ken Brown knows the pain and heartache that underlies the statistics. His employer, Johnson’s Controls Ltd, was one of the recipients of an HSE enforcement notice for breaching the welfare regulations. The Unite member was employed by the multinational contractor at the Sellafield nuclear plant in Cumbria when he was hit by a cherry picker in May 2011. The 64-year-old sustained extensive crush injuries and had to have his left leg amputated above the knee.

An HSE investigation found that the only advice the company with 160,000 employees worldwide gave to its employees when directing cherry pickers – the job Mr Brown was doing when he was injured - was to wear a high visibility waistcoat. No specific training was provided.

HSE prosecuted the company, which on 8 October 2012 was fined £65,000 and ordered to pay £8,162 in prosecution costs. The firm though wasn’t wholly repentant despite the court admission of criminal liability. In a subsequent civil compensation case, it argued Ken was partly to blame for the incident that cost him his leg.

It was a cynical ruse that didn’t work. On 12 November 2013, Unite announced it has secured a seven figure settlement for Ken. The compensation, though, won’t give him back his old life. “It’s destroyed the life I had,” the 64-year-old former mechanical fitter said. “I used to do fell walking. Everything that needed doing at home I used to do. I have got to rely on people for everything.”

There wasn’t much evidence of Johnson Controls caring too much. It was another case of under-compliance that cost the firm over £1m in compensation, fines and lawyers’ bills, and cost Ken his health and his job. His memory was affected by the accident and medication, and it was nine weeks after his injury before he learned – from his wife Thelma – that he had lost his leg.

When the business lobby argues about the ‘burdens’ of regulations, these human costs don’t feature on their cost-benefits ledger. Since the government imposed more barriers to compensation payouts and made inspections by HSE a rarity in even ‘high risk’ workplaces, the rogues may have good reason to believe they’ll never be caught or called to account.

Bad language

While the watchdog’s retreat from enforcement has been dictated by government policy and funding cuts, HSE’s “over-compliance” language is straight from the playbook of the employers’ lobby.

The Institute of Directors’ (IoD) June 2013 deregulation lobbying paper The Midas Touch concluded a “comparison between EU Directives and their corresponding UK employment legislation shows that over-compliance is significant, common and in cases, still being added to,” and pointed to health and safety regulations as evidence. The top bosses’ lobby group was claiming the UK laws themselves were the problem. HSE was adding a second tier objection topping up an unsustainable IoD claim with an unacceptable retreat from its safety advocacy mission.

And this example of very bad language from HSE is not an isolated blip. The watchdog has recently made a series of decisions that suggest it is actively complicit in the government’s determined drive to pull its teeth.

MAKING IT COUNT While the UK safety watchdog HSE unstitches the injury reporting rules, its US counterpart is looking to extend and then publish injury reports from firms to provide an incentive for them to improve their performance. More.

Under government direction HSE has stopped unannounced inspections in most workplaces. At the hands of government cuts, it rarely even investigates major injuries at work. But a decision to stop counting many of the victims was almost entirely its own work.

On 1 October 2013, HSE implemented the latest controversial changes to the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR) 1995 to “simplify the mandatory reporting of workplace injuries for businesses.” There is a shorter list of reportable major injuries, reportable occupational diseases are cut from 47 to just eight and the list of reportable “dangerous occurrences” is pared back.

Being rendered unconscious by an electric shock or by exposure to chemicals or biological agents is no longer reportable. Dislocations of the spine, shoulder, knee or hip are off the list, as is temporary blindness. Some diseases, like silicosis, have disappeared too. The much worse than anticipated scaling back also means injuries do not have to be reported unless they cause more than seven days absence, up from over three days.

Figure this out

The new reporting requirements appear to have made an incomplete reporting system deliberately less complete and effectively worthless. The TUC identified conflicting evidence in the HSE’s new injury figures, which undermines the safety watchdog’s claim that injuries are now at a record low.

BETTER WORK IS BETTER FOR BUSINESS

Making work better across the board – improving health and safety, increasing wages and reducing hours – is a productive ‘bundle’ that works for smaller firms, International Labour Organisation (ILO) research has concluded.
The researchers found evidence of an association between good workplace practices and reduced employee turnover, improved profitability and higher levels of customer satisfaction. They concluded a coherent ‘bundle of practices’, combining good occupational safety and health and training with improved working hours and wages will generally improve productivity, innovation and employee retention.
The review also found evidence of a cause and effect, suggesting that better management practices lead to improved business outcomes rather than vice versa.

Can better working conditions improve the performance of SMEs?: An international literature review. Richard Croucher, Bianca Stumbitz, Michael Quinlan and Ian Vickers, ILO, October 2013.

Figures published by HSE on 30 October 2013 “show an 11 per cent drop in major injuries compared to 2011/12,” HSE crowed, claiming: “Workplace major injuries hit an all time low for 2012/13.”

According to HSE there were 19,707 reported major injuries such as amputations, fractures and burns to employees (a rate of 78.5 injuries per 100,000 employees), compared with 22,094 in 2011/12 (a rate of 88.5 per 100,000 employees). The fatality figure of 148 deaths was the second lowest figure on record.

But lost time figures published alongside the injury statistics cast doubt on HSE’s best ever claims. Days lost through workplace injury were up from 4.3 million to 5.2 million, “which implies that the number of people injured is actually going up,” said TUC’s Hugh Robertson. “So which is correct?”

He said the reporting changes mean “it is almost impossible for anyone to use the HSE statistics to measure accurately what is happening to workplace injuries.”

Don’t put your hand up

Top off a tendency to look less, count less and care less with the HSE Fees for Intervention (FFI) system introduced on 1 October 2012 and you’ve got a seriously dysfunctional system, Hugh Robertson indicated. “It would also be good to know how much under-reporting has changed as a result of the introduction of Fee for Intervention which, coupled with the ban on pro-active inspections in many workplaces, may mean that employers are far less likely to report an injury. But because the whole reporting system has changed that is almost impossible to know.”

In the year from October 2012, 11,281 businesses, about a half of those subjected to unannounced HSE inspections, were found to be in “material breach” of criminal safety laws and sent an FFI invoice. This compares to just 672 convicted in 2012/13 in an HSE prosecution. Under the new system, the chances of an HSE visit resulting in an extra-judicial fee is more than 16 times higher than a court fine, a sizeable new incentive to avoid HSE’s gaze.

HSE brought in over £5,532,565 in income in the first year of FFI, and businesses are not happy. And there is early evidence that the prospect of receiving a bill from the watchdog is driving problems underground.

In November 2013, trade association the Building Safety Group said the £124 per hour FFI system had led to firms using its Technical Support Line rather than risk a costly call to HSE. Calls were at a record high and corresponded with a rise of 13 per cent in the number of accident reports it received in the quarter to October 2013, compared to the same period last year. HSE’s construction injury reports across the year had dipped sharply.

When HSE does show its face, it finds problems. A September 2013 construction industry inspection blitz of 2,607 sites found that on 1,105 (42 per cent) legal safety standards were not being met and on 644 sites (25 per cent) safety was so poor enforcement action was taken.

TUC’s Hugh Robertson concluded: “What that means is that it is almost impossible to prove what we all suspect which is that the government’s policies over the past three years have driven up the number of injuries.”

For Ray Burns and Ken Brown this isn’t an abstract debate about enforcement approaches. For Ray, a failure to comply with the law cost him his life; for Ken, it cost him the life he knew.

HSE, when it next thinks about advising employers about the danger of “over-compliance”, might do well to remember that.

US watchdog to go public on injury performance

While HSE unstitches the injury reporting rules, its US counterpart is looking to extend and then publish injury reports from firms to provide an incentive for them to improve their performance.

The 7 November 2013 proposed rule issued by the Occupational Safety and Health Administration (OSHA) came as official figures estimated three million US workers were injured in 2012.

“Three million injuries are three million too many,” said OSHA head David Michaels. “Public posting of workplace illness and injury information will nudge employers to better identify and eliminate hazards. We believe that responsible employers will want to be recognised as leaders in safety.”

The plan, which is opposed by business groups, would require companies with more than 250 employees to submit the data electronically on a quarterly basis. That would cover about 38,000 companies, Michaels said. A further 440,000 firms with 20 or more employees in named industries with high injury and illness rates would be required to submit electronically a summary of work-related injuries and illnesses once a year.

Under current US rules, employers are required to post annual summaries of injury and illness reports in a common area where they can be seen by employees.

Senseless act

Ray Burns, pictured with his granddaughter Emily, died after his employer ignored the welfare regulations. Six days after the recycling firm’s November 2013 criminal prosecution, HSE was advising businesses how not to “over-comply” with the potentially life-saving law.

Yet HSE knows there is a considerable problem of under-compliance. In the five years from 2009, over 1,400 firms have been the subject of legal action by the watchdog for falling criminally short of the minimum legal requirements laid down in the regulations.

It is impossible for HSE to gauge how widespread the problem really is, as it is a regulator bound by a don’t-look, don’t-see rule for most workplaces.

Back to the top

•	Introduction
•	You are too kind
•	Costly mistake
•	Bad language
•	Figure this out
•	Don’t put your hand up