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Health & safety at work: time for change
Abstract
After a brief review of the continuing unacceptable scale of work-related injuries and ill health suffered by workers as they go about the task of earning a living, this booklet provides a critical examination of the continued appropriateness of the Health and Safety at Work Act 1974. It does so through a discussion of four issues seen as critical to the operation of the framework of law established under the 1974 statute, including: the Act's application to current patterns of employment; the oversight and enforcement of employer compliance with their duties; worker access to representation; and the effective resourcing and governance of the framework of law created by the Act. On the basis of this discussion, a range of recommendations for reform are suggested to address identified problems in each of these areas. The scale and focus of these reforms supports a further argument that the time has come to repeal the Health and Safety at Work and replace it with a more appropriate and effective framework of law.
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Author and article information
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Ewing, KD., Hendy, J. and Jones, C. (ed). 2016. A manifesto for labour law: Towards a comprehensive revision of workers' rights. Liverpool: Institute of Employment Rights.
These shifts in employment should arguably have led to larger reductions in work-related harm than those which have occurred.
Health and Safety Executive. 2016. Health and safety at work: Summary statistics for Great Britain 2016, available at http://www.hse.gov.uk/statistics/index.htm
Tombs, S. and Whyte, D. 2008. A crises of enforcement: The decriminalisation of death and injury at work, Briefing 6. London: Centre for Crime and Justice Studies.
This relatively high probability appears even more disturbing when it is borne in mind that a significant proportion of the employed workforce work on a less than full-time basis and hence have a lower exposure to workplace risks as a result.
Palmer, H. 2008. ‘The whole story’. SHP Online, accessed May 15 2015, www.shponline.co.uk/features-content/full/the-whole-story.
Kauppinen, T. 2000. ‘Occupational exposure to carcinogens in the European Union’, Occupational and Environmental Medicine, 57: 10–18.
Tombs and Whyte, op cit, 4.
Weil, D. 2014. The fissured workplace: Why work became so bad for so many and what can be done to improve it. Boston: Harvard University Press.
See e.g. Thornquist, A. 2015. 'False self-employment and other precarious forms of employment in the 'grey area' of the labour market', International Journal of Comparative Labour Law and Industrial Relations, 31: 411–429; Office for National Statistics, Contracts that do not guarantee a minimum number of hours, available at https://www.ons.gov.uk/employmentandlabourmarket/peopleinwork/earningsandworkinghours/articles/contractsthatdonotguaranteeaminimumnumberofhours/march2016.
See Department for Business Innovation and Skills. 2016. Trade union membership 2015, available at https://www.gov.uk/government/statistics/trade-unionstatistics-2015.
Robens, Lord. 1972. Safety and health at work: Report of the committee 1970–72, Cmnd 5034. London: HMSO.
Ibid, pp. 54–55.
See Office for National Statistics, ‘Trends in self-employment in the UK: 2001 to 2015‘, available at https://www.ons.gov.uk/employmentandlabourmarket/peopleinwork/employmentandemployeetypes/articles/trendsinselfemploymentintheuk/2001to2015.
See Löfstedt, R. 2011. Reclaiming health and safety for all: An independent review of health and safety legislation. Cmnd 8219. London: HMSO. For a critique see James, P., Tombs, S. and Whyte, D. 2013. ‘An independent review of British health and safety legislation? From common sense to nonsense’, Policy Studies, 34(1): 36–52.
The Health and Safety at Work etc Act 1974 (General Duties of Self-Employed Persons) (Prescribed Undertakings) Regulations 2015.
See Office for National Statistics, op cit.
R v Associated Octel Co Ltd [1997] IRLR 123. Also see R v Mara [1987] 1 WLR 87.
See James, P., Johnstone, R., Quinlan, M. and Walters, D. 2007. ‘Regulating supply chains to improve health and safety’, Industrial Law Journal, 36(2): 163–187; and Walters, D., Wadsworth, E., Sampson, H. and James, P. 2012. The limits of influence: The role of supply chains in influencing health and safety management in two sectors. Leicester: Institution of Occupational Safety and Health.
James S. and Lloyd C. 2008. ‘Too much pressure? Retailer power and occupational health and safety in the food processing industry’, Work, Employment and Society, 22(4): 1–18.
Equality and Human Rights Commission. 2010. Inquiry into recruitment and employment in the meat and poultry processing sector. Manchester: Equality and Human Rights Commission.
See e.g. Ferrie, JE., Shipley, MJ., Stansfeld, SA. and Marmot, MG. 2002. ‘Health effects of chronic job insecurity and change in job security on self-reported health, minor psychiatric morbidity, physiological measures and health related behaviours in British civil servants: The Whitehall II Study’, Journal of Epidemiology and Community Health, 56(6): 450–454; and Benach, J., Amable, M., Muntaner, C. and Benavides, FG. 2002. ‘The consequences of flexible work for health: are we looking in the right place?‘, Journal of Epidemiology and Community Health, 56: 405–406.
See e.g. Aronsson, G., Gustafsson, K. and Dallner, M. (2002) ‘Work environment and health in different types of temporary jobs’, European Journal of Work and Organisational Psychology, 11: 151–175; Quinlan, M. and Bohle, P. 2008. ‘Under pressure, out of control or home alone? Reviewing research and policy debates on the OHS effects of outsourcing and home-based work’, International Journal of Health Services, 38(3): 489–525.
Weil, D. (2014) The fissured workplace: Why work became so bad for so many and what can be done to improve it. Cambridge, MASS: Harvard University Press.
Harpur, P. and James, P. 2014. The shift in regulatory focus from employment to work relationships: Critiquing reforms to Australian and UK occupational safety and health laws. Comparative Labor Law and Policy, 36(1): 111–130.
Johnstone, R. 2008. ‘Harmonising occupational health and safety regulation in Australia: The first report of the National OHS review’, Journal of Applied Law and Policy, 1: 35–58.
See Harpur and James (2014), op cit; and Johnstone, R. 2011. ‘Dismantling worker categories: The primary duty of care and worker consultation, participation and representation in the model Work Health and Safety Bill 2009‘, Policy and Practice in Health and Safety, 9(2): 91–108.
See section 7(a) Work Health and Safety Act 2011 (QLD).
Ibid.
More specific initiatives to regulate working conditions in supply chains within particular industries have also been developed in Australia. See e.g. Nossar, I., Johnstone, R., Macklin, A. and Rawling, M. 2015. ‘Protective legal regulation for home-based workers in Australian textile, clothing and footwear supply chains’, Journal of Industrial Relations, 57(4): 583–603; and Johnstone, R., Nossar, I. and Rawlings, M. 2015. ‘Regulating supply chains to protect road transport workers: An early assessment of the Road Safety Remuneration Tribunal’, Federal Law Review, 43(3): 397–421.
Hawkins, K. 2002. Law as last Resort: Prosecution decision making in a regulatory authority. Oxford: Oxford University Press.
Robens (1972), op cit: pp. 7 and 12.
See e.g. Hutter, B. 2001. Regulation and risk: Occupational health and safety on the railways. Oxford: Oxford University Press.
See e.g. Hanson, M., Tesh, K., Groat, S., Donnan, P., Ritchie, P. and Lancaster, R. 1998. Evaluation of the six-pack regulations 1992. Contract Research Report 177/1998. Sudbury: HSE Books.
Health and Safety Executive, Annual Report and Accounts 2014/15, p. 16. Available from http://www.hse.gov.uk/aboutus/reports/ara-2014–15.htm
See e.g. James et al (2007), op cit.
See Cutler, T. and James, P. 1996. 'Does safety pay? A critical account of the HSE Document “Costs of Accidents”', Work, Employment and Society, 10(4): 755–765; Davis, C. 2004. Making companies safe: What works? London: Centre for Corporate Accountability; Wright, M., Marsden, S. and Antonelli, A. 2004. Building an evidence base for the Health and Safety Commission strategy to 2010 and beyond: A literature review of interventions to improve health and safety compliance. HSE Research Report 196. Sudbury: HSE Books; and Baldock, R., James, P., Smallbone, D. and Vickers, I. 2006. 'Influences on small firm compliance-related behaviour: The case of workplace health and safety', Environment and Planning C: Government and Policy, 24(6): 827–846.
See e.g. Short, JL. and Toffel, MW. 2010. ‘Making self-regulation more than merely symbolic: The critical role of the legal environment’, Administrative Science Quarterly, 55: 361–396.
Strikingly, the thrust of such policy announcements is invariably on the maintenance rather than improvement of existing standards.
Better Regulation Executive/National Audit Office. 2008. Effective inspection and enforcement: Implementing the Hampton vision in the Health and Safety Executive. London: Better Regulation Executive, p. 23.
Robens (1972), op cit: pp. 66–67.
Hampton, P. 2005. Reducing administrative burdens: Effective inspection and enforcement. London: HM Treasury.
Department for Work and Pensions. 2011. Good Health and Safety, Good for Everyone. London: DWP. The reference to ‘non-hazard industries’ here is used to make clear that the classification does not apply to major hazard sites as defined under the European Seveso directive.
See List of activities/sectors suitable for targeting proactive inspections at http://www.hse.gov.uk/lau/enforcement.htm.
Health and Safety Executive. 2015. Health and safety statistics: Annual report for Great Britain 2013/14, available at http://www.hse.gov.uk/statistics/overall/hssh1314.pdf.
Health and Safety Executive Annual Report and Accounts 2015/16, available at http://www.hse.gov.uk/aboutus/reports/
To put these quoted figures in something of a historical context, in 1973 ‘HSE and HSC agencies’ undertook over 503,000 workplace visits, while in 1977 local authorities conducted over 534,000. See Dawson, S., Willman, P., Bamford, M. and Clinton, A. 1988. Safety at Work: The Limits of Self-Regulation. Cambridge: Cambridge University Press, p. 25.
See Tombs, S. and Whyte, D. 2010. ‘A deadly consensus: Worker safety and regulatory degradation under New Labour’, British Journal of Criminology, 50(1): 46–65; and Tombs, S. and Whyte, D. 2013. ‘The myth and realities of deterrence in workplace safety regulation’, British Journal of Criminology, 53(5): 746–763.
The recent increase in the (still low) number of HSE prosecutions means that the propensity of inspections to give rise to them is increasing. However, it is unclear how far this rise reflects a tougher approach towards noncompliance on the part of the HSE, the increased focussing of inspections on higher risk areas of activity and/or an increase in rates of non-compliance. The first of these possible explanations fits uneasily, however, with the fall occurring in the number of enforcement notices issued.
On a more positive note, following the coming into force of new sentencing guidelines in February 2016 it would seem likely that fines imposed on convicted companies are likely to rise significantly. See ‘Higher fines should spur safety improvements’, Risks, 739, 20 February 2016, available at https://www.tuc.org.uk/workplace-issues/health-andsafety/risks-newsletter/risks-2016/tucrisks-739–20-february-2016. In fact, albeit as a result of a small number of cases, total fines imposed as a result of HSE prosecutions increased between 2014/15 and 2015/16 from nearly £18.1 million to £38.3 million.
The annual statistics reports are available at http://www.hse.gov.uk/search/searchresults.htm?q=statistics%202014–15#gsc.tab=0&gsc.q=statistics%202014–15&gsc.page=1. The 2016 enforcement report is available at http://wwwhttp://www.rssb.co.uk/library/risk-analysis-and-safetyreporting/2011–01-report-riddor-reviewof-network-rail.pdf.hse.gov.uk/statistics/enforcement.htm.
See for example, Johnstone, R., Quinlan, M. and McNamara. M. 2011. ‘OHS inspectors and psychosocial risk factors; Evidence from Australia’, Safety Science, 48: 547–557; Bruhn, A. 2006. ‘Inspectors’ dilemma under regulated self-regulation', Policy and Practice in Health and Safety, 4(2): 3–33.
Hampton (2005), op cit, p. 7
Robens (1972), op cit, pp. 21–23.
Section (5) enabling the election of safety representatives was subsequently repealed under pressure from the trade union movement.
James, P. and Walters, D. 1997. ‘Non-union rights of involvement: The case of health and safety at work’, Industrial Law Journal, 26(1): 35–50.
James, P. and Walters, D. 2002. ‘Worker representation in health and safety: options for regulatory reform’. Industrial Relations Journal, 33(2): 141–156; Nichols, T. and Walters, D. 2009. ‘Worker representation on health and safety in the UK — problems with the preferred model and beyond’, in Walters, D. and Nichols, T. (eds.) International perspectives on representing workers' interests in health and safety. Basingstoke: Palgrave Macmillan.
Nichols and Walters (2009), op cit; Robinson, AM. and Smallman, C. 2013. ‘Workplace injury and voice: a comparison of management and union perceptions’, Work, Employment and Society, 27(4): 674–693; Walters, D., Wadsworth, EJK., Marsh, K., Davies, R. and Lloyd-Williams, H. 2012. Worker representation and consultation on health and safety. An analysis of the findings of the European Survey of Enterprises on New and Emerging Risks (ESENER). Luxembourg: European Agency for Safety and Health at Work, available at http://osha.europa.eu/en/publications/reports/esener_workers-involvement; and Walters, D. and Nichols, T. 2007. Worker representation and workplace health and safety. Basingstoke: Palgrave Macmillan.
van Wanrooy et al (2013), p. 38.
Kersley, B., Alpin, C., Forth, J., Bryson, A., Bewley, H., Dix, G. and Oxenbridge, S. 2006. Inside the workplace: Findings from the 2004 Workplace Employment Relations Survey. Abingdon: Routledge; van Wanrooy, B., Bewley, H., Bryson, A., Forth, J., Freeth, S., Stokes, L. and Wood, S. 2013. The 2011 Workplace Employment Relations study: First findings. London: Department for Business, Innovation and Skills.
See Frick, K. and Walters, D. 1998. ‘Worker representation on health and safety in small enterprises: Lessons from a Swedish approach’. International Labour Review, 137(3): 367–389; and Frick, K. 2013. ‘Resilience within a weaker work environment system – The position and influence of Swedish safety representatives’, in Walters, D. and Nichols, T. (eds.) Safety or profit? International studies in governance, change and the work environment. Amityville, NY: Baywood. On Australia see: Walters, D., Johnstone, R., Quinlan, M. and Wadsworth, EJK. 2016. ‘Safeguarding workers: A study of health and safety representatives in the Queensland coal mining industry, 1990–2013‘, Revue Relations Industrielles/Industrial Relations, 71(3): 418–441.
Johnstone (2011), op cit; and Johnstone, R. and Tooma, M. 2012. Work health and safety regulation in Australia: the Model Act. The Federation Press, Australia
van Wanrooy, B., Bewley, H., Bryson, A., Forth, J., Freeth, S., Stokes, L. and Wood, S. 2013. Employment relations in the shadow of the recession. Basingstoke: Palgrave Macmillan, p. 129.
van Wanrooy et al (2013), Ibid, p. 132.
On the use of such notices in Australia see: Walters, D., Johnstone, R., Quinlan, M. and Wadsworth, EJK. 2016. 'Safeguarding workers: A study of health and safety representatives in the Queensland coal mining industry, 1990–2013', Revue Relations Industrielles/ Industrial Relations, 71(3): 418–441. These proposals also link to wider discussions about the use of systems of 'coproduction' to enforce labour standards involving trade unions and other public interest groups working alongside government inspectorates. See e.g. Fine, J. and Gordon, J. 2010. ‘Strengthening labor standards enforcement through partnerships with workers’ organisations', Politics & Society, 38(4): 552–585.
Legislative Reform (Health and Safety Executive) Order 2008 (S.I. 2008/960).
See Schedule 2, Health and Safety at Work etc Act 1974, as amended.
Trades Union Congress. 2014. Toxic, corrosive and hazardous: The government's record on health and safety. London: Trades Union Congress, p. 9.
See ‘TUC condemns appointment of employer to workers’ representative seat on Health and Safety Executive', available at https://www.tuc.org.uk/workplace-issues/health-and-safety/tuc-condemns-appointment-employerworker%E2%80%99s-representative-seat.
Trades Union Congress (2014), op cit.
Health and Safety Executive Annual Reports and Accounts 2015/16, op cit, p. 64.
Also see Tombs, S. 2016. Social protection after the crises: Regulation without enforcement. Bristol: Policy Press.
See Tombs (2006), op cit; and Health and Safety Executive Annual Reports and Accounts 2015/16, op cit.
See HELA meeting paper, op cit.
Tombs (2016), op cit.
House of Commons Work and Pensions Committee. 2004. The work of the Health and Safety Commission and Executive: Volume 2 – Oral Evidence. London: Stationary Office, Ev137.
‘Deadly business’, Hazards 104, October – December 2008. Available at http://www.hazards.org/deadlybusiness/justice.htm.
Principles relating to the status of national institutions. United Nations General Assembly Resolution 48/134, December 1993. For a discussion of these principles in the case of domestic equality law see Hepple, B. 2011. ‘Enforcing equality law: Two steps forward and two steps backwards for reflexive regulation’, Industrial Law Journal, 40(4): 315–335.
Joint Committee on Human Rights. Sixth Report, session 2002–03, paras 223, 225 and 230.
See Schedule 1, Scottish Commission for Human Rights Act 2006.
James, P. and Walters, D. (eds). 1999. Regulating health and safety at work: The way forward. London: Institute of Employment Rights. James, P. and Walters, D. 2005. Regulating health and safety at work: An agenda for change? London: Institute of Employment Rights.
For example, the need to restore civil liability for breach of health and safety regulations, reversing the recent amendment to section 47 of the HSW Act.