The Health and Safety at Work Act at 50

What follows constitutes an abridged version of the following forthcoming article in the journal Occupational Health [at Work]: Phil James and David Walters, ‘Whither the HSW Act? Reflections on 50 years of the Health and Safety at Work etc Act 1974’, Volume 21/2, August/September. This can be found at https://www.atworkpartnership.co.uk/journal.

The HSW Act became 50 years old on 31 July 2024. Over the period since its passing, the Act has been the focus of much positive press. Indeed, an almost constant refrain has been how well it has stood the test of time. In particular, the self-regulatory philosophy espoused in the 1972 report of the Robens Committee and to which the Act was intended to give effect has continued to be endorsed by commentators and politicians with something approaching religious fervour.

Unfortunately, such complacency is simply impossible to square with reality. To demonstrate this, in what follows I draw on the IER book Work Health and Safety: 50 years of Regulatory Failure co-authored by David Walters and myself to show that work in Britain continues to generate enormous and unacceptable levels of harm and that this reflects a series of important weaknesses in the design and operation of the statutory framework put in place by the Act.

The Act’s significance

The advent of the 1974 Act marked the introduction of a radically different regulatory framework for work health and safety in Britain. The Act, for example, expanded the coverage of statutory health and safety law to all sectors and types of work, and created a tripartite national authority for work health and safety, in the form of the Health and Safety Commission (HSC), and the Health and Safety Executive (HSE) as its executive arm and home to all existing inspectorates. It also imposed new general duties on employers and others, including the self-employed, extended the protective duties of employers to persons not in their employment, provided for the establishment of a system of trade union appointed safety representatives and joint health and safety committee and gave inspectors new enforcement powers, notably by empowering them to issue Improvement and Prohibition Notices.

Institutional innovation, no matter how radical, is in itself, however, insufficient. What matters is whether the innovation generates its intended effects. So, in the case of the 1974 Act relevant questions to consider are how far its operation has (a) led to significant reductions in the scale of work-related harm experienced by workers and (b| in doing so, reduced such levels of harm to a satisfactory level.

The Act’s impact on work-related harm

Neither of these questions are straightforward to answer. In the case of the first, data limitations and the difficulties of taking into account the host of non-legal factors that can influence levels of work-related harm, such as the changing nature of work-related risks, create significant methodological challenges. Meanwhile, views can obviously differ concerning what constitutes a ‘satisfactory level.’

Nevertheless, in the case of both questions, it is difficult to claim that the 1974 statute has been the success its supporters claim.

It is true that there has been a significant fall in fatalities among employees and substantial reductions in non-fatal injuries during the time the HSW Act has been in place. The HSE estimates, for example, that fatal injury numbers have fallen by around 85% since the early 1970s. Evidence also suggests though that a large proportion of these reductions, perhaps between a half and two-thirds, are a reflection of shifts in the composition, of employment away from higher risk sectors and occupations. Furthermore, in 2022/23 it was still the case that 135 workers died and over half a million suffered non-fatal injuries, according to HSE figures, which it should be noted exclude harm flowing from work-related driving accidents and deaths arising from suicides related to work matters.

To such numbers must be added the thousands of deaths that occur each year from such traditional occupational health conditions as silicosis, mesothelioma and asbestosis and the ill health self-reported by workers through responses to Labour force Survey questions. The latest set of which indicate that a staggering 1.8 million workers felt they were suffering from new or long-standing forms of illness that they believed had been caused or made worse by work. A figure that is equivalent to a rate of 5,250 cases per 100,000 workers or a one in 20 chance of a worker reporting such a condition. Strikingly, the vast majority of these health conditions comprise musculoskeletal disorders and cases of stress, depression and anxiety and so are often intimately connected to the way in which work tasks and processes are designed and controlled.

In the face of such numbers, complacent reassurances that the HSW Act has stood the test of time are surely misplaced. This is particularly so given that HSE figures on work-related fatalities, injuries and ill health show them to have plateaued in recent years. A further relevant question to ask therefore is why has the impact of the Act been so limited?

Explaining the Act’s failure

For the author, the answer to this question resides in a combination of factors that span the limited nature of the obligations imposed on employers in relation to their management of workplace risks and their responses to them, a weakness of collective worker voice, a lack of regulatory leadership and oversight and a policy orientation that fails to sufficiently recognise that much of the harm experienced by workers requires attention to be paid to factors that extend beyond what is traditionally understood as ‘health and safety’.

Against the backdrop of the general duties imposed on employers under sections 2 and 3 of the Act, improvements have occurred in the way that workplace health and safety is managed. The evidence, however, also indicates that employers vary considerably in their willingness and capacity to do this effectively. Small and medium enterprises (SMEs), for example, have been found to struggle to understand what their duties under the HSW Act require of them. At the same time, the safety management systems of many larger organisations have been criticised for focussing too much attention on controlling worker behaviour, rather than removing risks at source, and for being too little concerned with supporting systems of collective voice, and addressing occupational health issues and the risks faced by various categories of non-employees, including those working for sub-contractors and suppliers.

These weaknesses have reflected the influence of a number of factors. These include the lack of pressures that employers faced to comply with their statutory obligations due to the limited inspection capacities of HSE and local authorities (see further below), the adoption by them of an ‘enforcement as a matter of last resort’ philosophy and a failure on their part to accord sufficient weight to occupational health risks, particularly those of a psycho-social nature. They have also encompassed other problematic features of the current statutory framework, such as the absence of more prescriptive regulatory guidance on how health and safety should be managed, including in respect of work-related driving, a failure to sufficiently clarify the competences employers need to identify and control work-related risks and the inadequacy of the duty imposed on employers with regard to the protection of non-directly employed workers, such as those employed by sub-contractors and ‘nominally defined’ as  self-employed.

The ability of workers, individually and collectively, to challenge managerial failures to identify and control risks represents another source of weakness in how the post-1974 regulatory regime has operated.

Initially, the advent of the 1977 Safety Representatives and Safety Committees (SRSC) Regulations, made utilising the relevant enabling provisions of the Act, acted during the late 1970s to significantly increase worker access to health and safety representation across all sectors of employment. This expansion, however, quickly reversed as trade union recognition declined during the 1980s and continued to do so for much of the period that followed. Furthermore, evidence further indicates that nowadays, even where representatives have been appointed, they are frequently not consulted by employers and are rarely able to make full use of their rights. The same evidence further highlights that HSE, and local authority inspectors have been consistently unwilling or unable to monitor employer compliance with their duties under the SRSC. There is furthermore little to suggest that the 1996 Health and Safety (Consultation with Employees) Regulations, which require employers to consult – either individually or collectively – with employees not covered by representatives appointed under the SRSC Regulations, have provided an effective alternative to their union-based counterpart.

That there has been a lack of oversight by HSE, and local authority inspectors of employer compliance is unsurprising. The HSE has faced an almost continuous real-terms decline in its funding and related reductions in staffing since the end of the 1970s; reductions that have coincided with an even greater proportionate reduction in local authority environmental health officers (EHOs). In the face of such cuts, inspection numbers and enforcement actions have declined dramatically, both recently and over the longer term.

The governance of the framework of law put in place by the 1974 Act has also been increasingly marked by weak leadership and government dominance.

In recommending the establishment of a ‘national authority’ for safety and health at work, the Robens Committee had in mind the creation of a tripartite body that possessed ‘maximum possible budgetary and operation autonomy.’ Alas, what has come to pass, first with the Health and Safety Commission (HSC) and now with the Health and Safety Executive (HSE), following the merger of the former’s role into that of the latter, is something rather different.

In the first decade or so of the operation of the HSW Act, the HSC oversaw the development by HSE of a host of regulations intended to replace previously existing ‘relevant statutory provisions.’ The 1980s and 1990s also saw the HSE active in bringing forward regulatory proposals to transpose the requirements of EU directives into domestic law. As the pace of new EU law making declined after the mid-1990s, however, the HSE exhibited little interest in advancing its own domestic regulatory agenda against the background of government-driven deregulatory pressures Meanwhile, governments have successively sought to undermine trade union representation and influence on the governance of  HSE (and the HSC previously).

The upshot is that today it is impossible to realistically argue that the HSE constitutes a source of independent policy making on workplace health and safety, as opposed to a tool of government and a victim of regulatory capture by the interests of employers.

Addressing the failure: What is to be done?

The conclusions emerging from the above analysis are clear. The 1974 Act has failed to reduce the scale of work-related harm in Britain to an acceptable level. This failure reflects a variety of problems surrounding the operation of central features of the regulatory framework created by the statute. These in turn point to lines of required reform.

Long running reductions in the inspection resources of the HSE and local authorities need to be radically reversed and accompanied by the adoption by of a tougher approach to enforcement. The constitutional status of the HSE needs to be revised to ensure that it has a meaningful capacity to engage in independent, tripartite decision-making. Rights to collective worker representation also need to be considerably enhanced and afforded more support and protection by local authority and HSE inspectors. Furthermore, the core managerial duties laid down under the Act need radical revision and to be supported by more onerous requirements regarding the skills and knowledge that employing organisations need to possess in order the identify and control workplace risks adequately.

In Work and Health: 50 Years of Regulatory Failure a range of potential reforms are identified in each of these areas. For example, in the last area, it is argued that there is a strong case for making the core duty of employers to protect employees more relevant to today’s world of work by following the Australian example and replacing it with one that applies to those in control of businesses or undertakings (rather than employers) and extends to encompass all workers who directly or indirectly work on their behalf. In addition, it is argued that the current scale of work-related ill health and the psycho-social nature of much of it, point to a need to accord greater regulatory recognition to the way in which things like low pay, insecurity, poor job satisfaction and lack of autonomy generate adverse health effects and to do this by embedding the regulation of work health and safety in a broader decent work agenda. That is a reform agenda which recognises how a strong set of collective and individual employment rights can simultaneously enhance worker well-being and help address the appalling health inequalities that currently mark British society by providing workers with greater access to work that provides fair and decent income, greater employment security and treatment based on respect and personal dignity.

It is recognised of course that there is much scope for debate concerning the precise nature of such a reform agenda. Given this, the time is surely right to undertake a major new inquiry into how the present regulatory regime for work health and safety can best be reformed to overcome its current failings and make it more appropriate to work and employment in the 21^st century. After all, the HSW Act was based on the recommendations of a report that was produced in a world of work very different to that which prevails today and hence in one that generated very different risks to workers and vary different patterns of harm to them.