Health and Safety at Work
Wednesday 12 June 2013
A one-day conference
About the Conference
The Institute of Employment Rights' Health and Safety at Work 2013 conference in London on Wednesday June 12th could not have come at a better time. The Enterprise and Regulatory Reform Act, which gained royal assent in April, revoked the 114-year-old civil liability of employers for their workers' health and safety - making it exceptionally difficult to gain compensation for injury or death at work. Meanwhile, a new Deregulation Bill was announced in the Queen's Speech that will include the exemption of some self employed people from health and safety laws altogether. These are just the latest developments of a broad attack on health and safety that has been gathering steam over the last three years. The momentum of the cuts has been maintained by right-wing press reporting widely on health and safety myths and demonising inspectors as "nazis" and "stormtroopers", as Chair of Prospect's HSE Branch Simon Hester highlighted on opening the conference.
But so-called "excessive health and safety culture," on which David Cameron once vowed to "wage war", is far from the oppressive regime the Coalition has framed it to be. Indeed, the disabling slashes to the very framework that protects workers from toiling in the Satanic Mills of yesteryear have sparked widespread anger. The day before the IER's conference, UCATT and Unite held an enormously successful lobby at the House of Commons named Save our Safety, in which over 200 construction workers met with MPs. Labour leader Ed Miliband backed the campaign to reverse the Coalition's health and safety cuts, saying, "For far too many people in Britain the workplace is nasty, brutish and unfair because the government is failing to set the right rules."
A view from the HSE
Hester provided an account of how the undermining of workers' welfare is being experienced by those employed to be the guardians of it - Health and Safety Executive (HSE) inspectors. Morale has slumped among inspectors since cuts of a huge 35% were imposed on the body and hundreds of jobs were lost, he began. Following such widescale redundancies, anxiety has spread among the remaining workers and many are leaving to find more certain employment, leaving the HSE to recruit 24 replacement inspectors by November 2013.
It is no surprise inspectors are fearful and demoralised. In addition to the cuts in funding that have destabilised their job security, their roles are turning from that of potentially lifesaving interveners, to part of the clean-up team after deaths and injuries have occurred. The government has issued a moratorium on pro-active and unannounced inspections in sectors it considers to be "low-risk" (including in the agricultural, manufacturing, quarrying, docks and the whole of the public sectors), leaving inspectors helpless to prevent accidents in these areas. What's more, the exodus of inspectors from these sectors is leading to a loss of competency as well as local and industry knowledge. Inspectors are now only brought in after the event when a harmful incident takes place. Hester reported a 33% reduction in proactive inspections.
There is also now a £124 per hour charge to companies that are found to have breached health and safety laws when announced inspections take place, but this is an unpopular move among inspectors. The process is now more convoluted and the inspections quicker with less interaction with the workforce and reduced opportunities to explore the workplace and ask questions. Elsewhere, the HSE's information and advice phone line has been shut down and the body is no longer able to campaign on hazards such as asbestos. When it comes to working time regulations - an incredibly important part of occupational health - the HSE now only has one part-time inspector covering a huge area, and very few occupational health doctors. This is despite one million people in the UK known to be suffering from work-related ill health.
However, those industries that have been made exempt from proactive inspections need not go without HSE checks up until the time an incident occurs. Hester explained that a report received by the HSE by an official trade union health and safety representative would spark an investigation and he encouraged trade unions to ensure these reports are made.
Recommendations to the next Labour government
The cuts to the HSE have come in spite of many reviews being supportive of the body and its work - including one by Professor Ragnar Löfstedt that the government claims to be following. But as well a slashing funding for the organisation, Chancellor George Osborne has also announced 85% cuts or amendments to health and safety regulations. Steve Cottingham of O.H. Parsons Solicitors, the second speaker at the IER's conference, accused the government of simply ignoring Löfstedt's recommendations, then misrepresenting his words to back up their own policies - a claim the Professor himself has made at a previous IER event.
Cottingham echoed Hester in his bleak view of the prospects for health and safety under the current Government. Not only has the Coalition reduced regulation and crippled the HSE, it has also made it difficult to seek justice for injured workers and the families of those that have died on the job by removing employers' civil liability for their staff's welfare. Employers no longer have reason to be afraid of the consequences of breaking the law, particularly as the government is attacking trade union facility time, making it more difficult for trade union representatives to effectively protect the workforce. Employers will "see health and safety legislation as being, at best, voluntary," he stated.
The next Labour government should "enact health and safety legislation that is effective, unambiguous and imposes strict liabilities on employers", Cottingham recommended. He also suggested empowering the HSE to enforce regulations more effectively through the provision of information and education, as well as inspections and prosecutions. Indeed, Löfstedt's report showed that one of the major health and safety problems in the UK is that employers often misunderstand legislation and then burden themselves by over-complying. Cottingham recommended that the roles of health and safety representatives should also be extended within workplaces, and that the removal of employers' liability for their workers' health and safety should be overturned. Read more in Cottingham's report.
The removal of employers' 114-year-old liability for their workers' welfare...
The third speaker at the event was Ben McBride from Thompsons Solicitors, who focused his presentation on the new change to the law made by Section 69 of the Enterprise and Regulatory Reform Act 2013, which is likely to come into force on 01 October 2013. He explained the reversion of employers' liability for their workers' welfare as the removal of "the right to injured employees to claim damages as a consequence of their employer breaking a statutory duty to ensure their health and safety. They can only then use the common law." Appealing to Common Law in a health and safety claim is far less likely to lead to a successful outcome, and so many workers will simply be left uncompensated. However, McBride suggested several ways of taking legal justice, for example by using the Employers’ Liability Defective Equipment Act 1969. Read more in his report.
These aren't accidents, this is crime
David Whyte, Sociologist at the University of Liverpool, took an entirely fresh approach to the issues surrounding health and safety law, arguing that the problem does not just lie in legislation, but also in language. Currently, when a person is severely injured or killed in the workplace, it is described as an accident. But if the worker came to harm due to the negligence of the employer, then why should it not be described as a crime? Whyte urged the Trades Union Council to lean on this issue in the run-up to the next election, underlining that corporate greed is being paid for by workers' lives. The number of deaths in the workplace has rocketed in certain categories since the 1970s, while inspections have recently fallen by two-thirds, Whyte noted. He argued that health and safety is no longer a minority issue, but something that personally impacts 50,000 people every year. But how can this type of crime be combated without the right enforcement? Although HSE inspectors have, in some instances, more power than the police, they do not have the cultural capital to act with authority, Whyte explained. Read more in Whyte's report.
Health and safety and the self-employed
Tony Lennon, Research Officer at BECTU, was the next speaker at the podium and he focused on the issue of health and safety for self-employed people, who now account for 50% of BECTU members and 14% of the communications industry as a whole (approximately four million people). Self-employed workers in this sector face different problems compared with those who are "bogus" self-employed in the construction industry. Health and safety law partially covers self-employed people in the communications sector, but there are certain exemptions for freelancers including actors.
Self-employed people are three times more likely to die at work than direct employees, Lennon stated, quoting 2011/12 HSE fatality statistics. The planned exemption of self-employed people from health and safety legislation, so long as they are not putting others at risk, is considered dangerous by BECTU. It is likely the new law will cause confusion among the self-employed and their engagers, who are at risk of misinterpreting the rules and believing persons to be exempt from legislation when they are not. Read more in Lennon's report.
Looking to the future
John McClean of the GMB was the penultimate speaker and an unexpected one for our delegates, as he stepped in at the last minute for his colleague Daniel Shears. McClean began with the same gloomy outlook as most of our experts, but provided ideas for the future. The Labour Party are not prioritising health and safety, he stated, and the Coalition government are determined to destroy it. However, while engaging with the current administration may not yield any results, lobbying the incoming government has a much greater chance of success and it is hoped that the TUC's health and safety manifesto may be fed into the Labour Party manifesto for the next election. It may also be possible to secure support from Europe by responding to the EU Strategy consultation later in the year to suggest that workers should be involved in public sector procurement. He highlighted that the EU Strategy for 2013-2012 is currently focused on stress, nano-materials, an ageing workforce, carcinogens and minimum Labour Inspector Standards. However, he warned that political feeling in the EU was moving to the right.
Providing the view of health and safety from the ground, McClean noted there are several barriers to good health and safety, including the use of a patronising top-down approach, poor communications skills and a culture of mistrust within businesses. It is GMB's wish that the role of health and safety representatives is enhanced, and a full consultation on the health, safety and welfare aspects of public procurement is launched. Read more in McClean's report.
Good for workers, good for the country, good for business
Last to speak was Hilda Palmer of the Hazards Campaign, who opened by labelling the government's cuts to health and safety a race to the bottom. She pointed to some shocking statistics showing the real impact of workplace illness and deaths in the UK. There is not only a massive human cost to the deregulating health and safety, but also an economic one. Yet corporate greed leaves the state to pay for those who are too unwell or severely injured to go back to their jobs. If health and safety - including occupational health hazards, such as stress and cancer - were invested in, the UK could save billions of pounds per year, the people would be happier and in better health, and even companies would benefit from a more content and predictable workforce, she argued.
Chaired by IER Director Carolyn Jones
Simon Hester, Prospect, HSE Branch
John McClean, GMB
Ben McBride, Thompsons Solicitors
David Whyte, University of Liverpool
Tony Lennon, BECTU
Steve Cottingham, O H Parsons
Hilda Palmer, Hazards Campaign