In search of the Covid-secure workplace

If the average workplace will only be inspected once every 275 years, how does Boris expect these Covid 'spot checks' to work?

Commentary icon13 May 2020|Comment

Steve Tombs

Professor of Criminology, Open University

Whether or not Boris Johnson is a consistent, conscious liar is not perhaps for me to judge – though I do have an opinion. But his tendency to bat away significant and awkward questions with an off-the-cuff response which he knows sounds about right but to which it is clear he has given little or no thought is apparent to anyone who has paid any attention to his political posturings.

So having announced on Sunday that workers who could not work from home would be “actively encouraged” to return to work the following day (later revised to Wednesday), when he was asked about plans to make workplaces safe in the Commons on Monday, his answer was immediate: the government would publish rules for making businesses “Covid-19 secure” and these would be enforced by the Health and Safety Executive (HSE), who would be “having spot inspections to ensure businesses are keeping employees safe”. He then pledged £14m of additional funding to support the HSE for this task. Sorted. Job’s a good ‘un. Johnson stands with working people again. Still got their backs. Still all in this together. Aren’t we?

Well, no. Much could be said but let me add a few observations from the real world of data and evidence to the government’s fantasises of responsible COVID-secure workplaces overseen by a protective regulatory agency ready “to police workplace practices as the economy gradually reopens”.

The statistically average employer can expect to see an inspector once every 275 years.

The absence of enforcement capacity

The first thing to say is that the HSE is hardly well-placed to undertake the inspections to which Johnson has pointed. Giving evidence to the Work and Pensions Committee on 04 March 2020, Martin Temple, Chair of the HSE, noted that:

“One of the interesting things, just to give you a sense of things, is that the number of inspections we do is relatively small. We do 20,000-odd or something of that order and we have 5.5 million duty holders.”

Just stop there, and do the maths. On the basis of his own figures, 20,000 annual inspections of a regulated population of 5.5 duty holders, employers who manage and control workplaces, the HSE’s Chair has revealed that the statistical likelihood of any one duty holder being inspected by the HSE in any one year is one in 275. Or, to put that slightly differently, the statistically average employer can expect to see an inspector once every 275 years. Even accepting that some workplaces will include several duty holders – notably, for example, larger construction sites – so that the statistical average is reduced, the HSE Chair’s data makes it hard to see how Covid-compliance is to be furthered by spot checks.

In fact, HSE inspectors – and their local authority counterparts, health and safety Environmental Health Officers (EHOs), who in theory will share a significant burden of ‘ensuring’ Covid-compliance at work – have never seen themselves as a police force for industry, nor really as bodies having or needing to have a significant inspectorial presence. But that presence has certainly declined over recent years. Figures placed in the House of Commons (HoC) library at the end of last month showed that for HSE:

  • total staffing figures had fallen from 3,702 to 2,501 from 2009-10 to 2017-18
  • the number of inspectors dropped from 1,495 to 978

Little wonder, perhaps, that by 2018/19 there were just 361 convictions for health and safety offences, a fall of 40% from 2014/15, this itself following ten years of decline from 2003/04.

All of these clear downward trends are partly, if not wholly, explained by significant reductions in funding for HSE and, through local authorities, for local authority enforcement. For HSE, the HoC Library figures note that funding fell from £239m in 2009-10 to £135m in 2017-18. Local authority regulatory capacities have been even more diminished, to the extent that in my own research I found significant-sized Local Authorities such as Liverpool without one single dedicated health and safety inspector.

But this is not just about money or personnel or enforcement actions. We can also look at other reasons why HSE and local authorities are unlikely to be able to protect workers as they are forced back into contaminated workplaces.

HSE funding fell from £239m in 2009-10 to £135m in 2017-18.

Where law enforcement is against the law

For one thing, changes in the law prevent them from so doing. Two are crucial.

The Primary Authority (PA) scheme – mushrooming across the UK – effectively prevents local authority enforcement actions on health and safety against companies signed up to the scheme. Under PA, a company operating across more than one local authority area enters an agreement with one specific local authority to regulate all of its sites, nationally. This contract buys for the company the absence of effective oversight in the vast majority of its sites. These can be visited in other areas, but any enforcement action needs to be undertaken through the local authority which is the PA. The PA scheme effectively serves as the most robust protection for employers against health and safety law enforcement. It needs to be scrapped.

Further, many workplaces simply cannot be inspected proactively – that is, for the kind of spot checks referred to by Johnson. This is a matter of law. In 2011, the Department of Work and Pensions (DWP) identified whole sectors of economic activity as ‘low-risk’ and thereby prohibited proactive inspections at local authority and then at HSE level. No rationale for what constituted ‘low-risk’ was provided, and an analysis by Hazards magazine found that of the 258 reported worker fatalities in the 19 months which followed the change, 53% were in low-risk sectors. This decision must be reversed.

The Primary Authority scheme effectively serves as the most robust protection for employers against health and safety law enforcement.

The record so far …

Indeed, the facts are that workers have not been protected throughout the Coronavirus outbreak to date. Certainly, the HSE has consistently stepped back from even attempting to do so, as Phil James has recently documented.

But as Johnson reminded the House, many groups of workers have had to work throughout the lockdown. Key, essential workers, a group that we now recognise as covering not just health, social care and emergency service staff, but also transport and shop workers, those in the food supply chain, cleaners, posties, refuse collectors, and, albeit less celebrated, workers in construction, security and the diffuse areas of the gig economy. And these have not been protected by HSE nor local authorities even where social distancing is patently and consistently ignored. Building workers have maintained a heroic ‘shut the sites’ campaign through the seven weeks of the lockdown to seek to protect worker and community safety.

But we learned only this week that “People in low-paid, manual jobs … are four times more likely to die from the virus than men in professional occupations, while women working as carers are twice as likely to die as those in professional and technical roles”. Security guards, care workers, construction workers, plant operatives, cleaners, taxi drivers, bus drivers, chefs and retail workers – those who have worked through the lockdown or are being forced back to work now in far greater numbers – are all at a greater risk of dying, according to the Office for National Statistics.

So we know that working people have not been protected through the health crisis – quite the opposite. There is no reason to believe they will be as the virus continues to circulate through our communities. £14 million and the vacuous threat of spot-checks don’t cut it.

Ultimately, it’s a truth that the best protection for workers is the strength of collective action by workers themselves – and it seems likely that coming weeks and months will see further widespread examples of the wildcat strikes and walkouts witnessed during the least seven months, even as the mainstream media have ignored these. But it is crucial for workers to have the law on their side – so we need clear legal protection for workers to exercise their right to refuse to engage in work that threatens the spread of the virus through workplaces and communities.

Steve Tombs

Steve Tombs is Professor of Criminology at the Open University. He has previously written publications covering health and safety issues... Read more »