Firm favourites - Hazards issue 115 July-September 2011

Hazards issue 115, July-September 2011

Government would rather listen to business than reason

In the four months after announcing in March 2011 the government’s strategy to dismantle workplace safety protections, DWP minister Chris Grayling met with 10 separate industry bodies to flesh out his plans. But he still cannot find any time in his diary for FACK, the organisation for those like Linda Whelan (above) who have been bereaved by work.

Firm favourites
Hazards issue 115, July-September 2011

When the workplace safety system is not working well, people are still getting sick and tens of thousands are dying, who would you say has the right to be heard?

QUICK QUIZ

Which of the following recent incidents angered government safety minister Chris Grayling so much he felt compelled to issue a public dressing down to those responsible?

1 A sharp increase in workplace fatalities in the year after his government came to power?
2 A company fined £1 for criminal safety failings linked to the death of a worker?
3 A lack of Health and Safety Executive (HSE) regulatory oversight that means only one in 19 reported major injuries are now even investigated?
4 Holiday firm Butlins instructing staff to stop customers crashing into each other in dodgem cars, after some suffered injuries including broken bones?

For the answer, see Minister takes workers for a deadly ride.

Employment minister Chris Grayling, the architect of a government strategy which this year has gutted the Health and Safety Executive (HSE) and ordered a hands-off enforcement waiver for most businesses, has refused a sequence of requests from Families Against Corporate Killers (FACK) for a meeting to discuss the plans.

Frustrated, a delegation – all of whom had lost family members in workplace tragedies – even travelled to meet the minister at his London HQ, but despite being notified of their intentions he failed to show or even respond to their correspondence.

While “diary commitments” have prevented him meeting relatives bereaved as a result of employer negligence at work, the DWP minister had no such difficulty when it came to hearing the case of the business lobby.

In a 27 July 2011 freedom of information response to Professor Steve Tombs of Liverpool John Moores University, who is collaborating with Hazards on this investigation, DWP revealed Grayling had since 21 March 2011 met with industry groups the Confederation of British Industry (CBI), the British Chambers of Commerce (BCC), the Chemical Industries Association (CIA), manufacturers’ organisation EEF, the Alliance of Industry Associations, farm industry lobby group NFU, the UK Contractors Group and the waste and recycling industry’s Environmental Services Association. DWP revealed the minister also managed to squeeze in face time with the Association of British Insurers and Zurich, the private insurance giant.

PUPPY LOVE Tory attack dog Chris Grayling has already delivered his friends in the business and insurance lobby swingeing cuts in enforcement and a plan that will deny thousands of workers each year compensation if their employer causes them to be injured or develop a disease caused by work. But while these industry groups have got the minister’s ear, he refused to hear what bereaved families think needs doing to improve a safety system that fatally failed them [more].

In the same four month period since the launch on 21 March 2011 of the government’s strategy, Grayling met just one workers’ advocacy organisation, the TUC [see box, right].

FACK believes the snub exposes the underlying lie underpinning a strategy the government styles as ‘Good health and safety, Good for everyone’.

The business lobby can already tick off its wish list a reduction in safety enforcement and the insurance lobby has been gifted legislation which will dramatically curtail access to justice for those injured or developing a disease are a result of a criminal exposure to hazards where they work [see: Legal changes will hurt victims].

The minister announced the Löfstedt review of health and safety on 21 March 2011, but the same day he pre-empted its findings by demanding a cut of a third in proactive HSE inspections, this in an agency already told to reduce its budget by 35 per cent over four years.

Linzi Herbertson, a founder member of the relatives group, said: “FACK families are utterly disgusted with Chris Grayling's refusal to meet with us about the effects of the cuts he is proposing to the already inadequate health and safety system which allowed people we love to be killed just for going to work.” She added that the minister was more interested in “listening to the false accounting of the business lobby.”

Fatal errors

The minister is not above some creative accounting of his own. Grayling misled the House of Commons in a 13 June 2011 debate, by claiming the costs to the economy of workplace safety failings are billions less the real figure. In a response to questions from Labour MP Ian Lavery, the employment minister said: “The Health and Safety Executive estimates that the annual cost to Great Britain of workplace injuries and work-related ill health is currently in the order of £20 billion.”

He also “absolutely agreed” with Tory MP Stephen Metcalfe who has asked if health and safety legislation “when it is applied inappropriately and gold-plated… can cost jobs and damage the economy?” Grayling added that “we have to understand that if the system is over-bureaucratic, it will lead to the closure of businesses and cost jobs, and that does nobody any favours.”

Photo: Jawad Qasrawi

REAL COSTS Employment minister Chris Grayling won’t meet families who have lost loved ones in workplace tragedies – even dodging a FACK delegation when they turned up at his London HQ.

The minister did not tell the Commons his £20bn figure discounted the big tag items in the health and safety ledger. Quietly excluded were long latency conditions like occupational cancer and work-related heart disease that would make up the lion’s share of a more comprehensive – honest – total.

Grayling was spoon-fed the £20bn quote by a cowed HSE. But the safety regulator admitted when questioned by Hazards: “The estimates do not include the costs of long-latency disease, in particular occupational cancer, which would impact on the costs.”

A similar explanatory note was included in the HSE briefing to the minister - obtained by Hazards on 7 July 2011 as a result of a freedom of information request - that contained HSE’s suggested Commons reply. But both HSE and the minister decided it was not worth telling parliament their costs calculation was incomplete, this despite the HSE background notes for the minister declaring: “These costs could add significantly to the total.”

Every hour of every day around the clock someone dies of occupational cancer, according to HSE’s self-confessed ‘conservative’ estimate. This cancer contribution alone would more than double the costs estimate Grayling provided to parliament – one type of asbestos-related cancer, mesothelioma, kills over 2,000 each year at a minimum cost in excess of £5bn - without starting on other slow developing conditions or the frequently higher costs arising from those who get sick but survive.

Grayling’s creative accounting, aided by a compliant HSE and combined with an industry-blind spot on the substantial cash benefits to society of not killing or sickening workers, creates a regulation averse fiction to justify less health protection at work. It is an approach that experts are now warning can cause serious harm to real businesses and real-life workers.

OMISSION POSSIBLE DWP minister Chris Grayling told parliament work-related injuries and ill-health cost Great Britain £20bn a year. But he didn’t tell them - as revealed in advice provided to the minister by HSE and obtained by Hazards as a result of a freedom of information request (click on image above) - that all the big tag occupational diseases were excluded from this total. The real costs figure would show failing to protect people at work comes at a staggering economic and human price .

Safety professionals’ organisation the Institution of Occupational Safety and Health (IOSH), in a May 2011 report, argues British businesses are losing their competitive edge because of a failure to tackle the risks of injury and illness in the workplace.

IOSH says work-related accidents and ill health cost businesses nearly £8 billion a year, with absenteeism, low productivity and legal bills among the ‘financial hits’.

The safety body’s Li£esavings campaign argues “good, proportionate health and safety” is not a burden on business, but “is being used by forward-thinking CEOs and managing directors as a driver for growth.”

IOSH president Steve Granger said: “It’s frankly wrong for ministers and business leaders to talk about health and safety as ‘red tape’ and a burden on business.” He added: “As well as the primary aim of saving people’s lives and livelihoods, good occupational health and safety can also deliver vital cost savings and help your business to grow.” One company featured in the report, E.ON, saved nearly £12 million in one year by improving its safety performance and Rolls Royce saved £11 million over three years.

An avalanche of recent evidence has linked protective health and safety legislation to protection of jobs and job growth. A 2011 study from the University of Massachusetts Amherst suggested that while the introduction of a new industrial chemicals safety law could stimulate the creation of tens of thousands of new jobs in green chemistry and related fields, doing nothing would allow the long-term haemorrhage of US jobs in the sector to continue. The do-nothing option would see the domestic chemical industry near enough disappear entirely over the next two decades [see: New US chemical safe law would be good for jobs].

But these facts don’t fit Grayling’s theory. More up his street is a survey report the same month from the British Chambers of Commerce (BCC) headlined: ‘Half of businesses tied up in health and safety “yellow tape”.’ It put the costs of workplace safety regulations at £355m a year.

It’s blatant spin. BCC’s survey in fact found the majority of the 5,928 employers questioned – 53 per cent - did not find workplace safety regulations significantly burdensome and one in five didn’t find them burdensome at all. Neither did the BCC report, Health and safety: a risky business?, make clear its cost calculation discounted entirely the far more substantial cash benefits of safety regulation.

This is something recognised implicitly in HSE’s costs briefing for the minister, but not reflected in the “suggested reply” and the bargain basement £20 billion cost estimate Chris Grayling regurgitated without qualification. This is not surprising – the only conclusion of honest accounting is that a failure to responsibly regulate health and safety at work comes at an unacceptable cost to society.

“The majority of the cost of occupational injuries and ill-health fall on individuals and government, with a much lower proportion falling to employers,” the HSE ministerial briefing notes. “This is part of the economic rationale for government intervention in this area.”

But the government’s policy, already being applied, it to withdraw from interventions – which it says are ‘burdens’ on business – by reducing enforcement, removing regulation and pulling the regulator’s teeth.

It’s a contradiction not lost on the unions. In response to the BCC report, a TUC spokesperson commented: “Employers have to get real on health and safety regulation and stop complaining about non-existent burdens on business and instead focus on protecting their staff and the public. The problem for business is not regulation, but the mind-set that sees the need to protect workers as being a ‘burden’, and it is time that the BCC and the government started addressing that rather than encouraging a race to the bottom.”

Inconvenient corpses

The government health and safety strategy is already propelling the UK towards lawlessness at work. Official figures obtained by Hazards reveal the number of major injuries even investigated by the Health and Safety Executive (HSE) has slumped to just 1 in 19 [see graphic]. The figures show that of the 70,000 major injuries reported to HSE in the two years from 2008/09 to 2009/10, less than 1 in every 50 had as of May 2011 resulted in any official enforcement action.

Even official figures, accepted to include only a minority of injuries, record the crunch of breaking bone in a workplace about 80 times every working day. Eyes or limbs are lost at a rate of two a day. And it could be getting worse.

Figures released by HSE on 28 June 2011 showed the coalition government’s first year in power had been accompanied by a sharp rise in workplace fatalities. Worker deaths in Britain in 2010/11 rose by over 16 per cent. Deaths in the waste and recycling and the construction sectors also saw a marked upturn [see: Sharp rise in deaths at work].

Then there’s HSE’s one-an-hour cumulative occupational cancer death toll, a figure that is exceeded each year by deaths from work-related obstructive and restrictive lung diseases and by work-related heart disease deaths. We are talking tens of thousands of work-related deaths every year.

Professor Ragnar Löfstedt, whose review is due to report in autumn 2011, has been told by Grayling to concentrate on “easing unnecessary burdens on business,” rather than the inconvenient corpses FACK would have drawn to his attention. The project is not really about changing the law. It’s about risk envy – our competitors don’t all abide by strict rules governing safety and decency at work, so why should the UK?

It is an approach rejected by the TUC, which says it will “strongly oppose” any government moves to undermine workplace health and safety protection. The statement, in TUC’s written submission to the Löfstedt review, notes the union body “does not support regulation for the sake of it, and has worked closely with the HSE on its simplification programme because that was a genuine attempt to ensure that the regulatory regime was effective.”

But it adds the TUC “does not believe however that regulation imposes any kind of burden on business. It is a responsibility, just as paying taxes is a responsibility, and no business should be able to operate unless it can do so safety.” The submission concludes: “Regulation needs enforcement to be effective and the current level of enforcement activity is clearly inadequate.”

The TUC submission notes that voluntary, “self-regulation” approaches are not a viable alternative to regulation and enforcement, and have “failed” where they have been tried. This is something confirmed in the US, where an investigation in 2011 concluded since 2000 at least 80 workers have died in ‘model’ workplaces exempted from some official safety inspections under a ‘Voluntary Protection Program’ [see: 'Model' US workplaces escape scrutiny then kill].

Linda Whelan, a FACK founder whose son Craig died in a workplace fireball, said: “None of our family members was killed by too much regulation or employers fearing enforcement. They were killed because of the exact opposite – too little if any time spent on health and safety, and no fear of being found out.”

HSE, the enforcer, has meanwhile been left scrabbling for funds. In July 2011, it started a consultation on proposals for “cost recovery for intervention”. HSE hopes the scheme will come into operation from as early as April 2012. Under the ‘fee for fault’ proposals, HSE will recover costs at current estimates of £133 per hour from firms it finds breaking the rules. Costs of any specialist support needed by HSE would also be passed on [see: HSE goes fundraising after government cuts].

An HSE impact assessment on the proposed regulation to introduce the fees system admits the watchdog is seeking to plug a funding hole resulting from the 35 per cent cut in government funds being introduced over four years. It concedes without securing make up funds, the inevitable “lower level of enforcement” will mean “a consequent decrease in health and safety standards throughout Great Britain, with ensuing costs to society.”

Legal changes will hurt victims

Victims of occupational injuries or diseases will be unable to afford a compensation claim or will have to pay the legal costs as a result of a law being pushed through by the government.

The TUC says the Legal Aid Sentencing and Punishment of Offenders Bill, introduced in June 2011, will switch the cost of personal injury cases from those who negligence caused the problem to their victims. The Bill will do away with Conditional Fee (CFA) or ‘No Win No Fee’ agreements. These currently allow all legal costs, including the solicitor's success fee, to be recovered from the negligent defendant.

Injury or disease victim will be expected to give up 25 per cent of their compensation to meet legal costs, even in cases where the defendant has been grossly negligent. The draft law leaves open the possibility for victims who lose cases to be required to pay legal costs incurred by the employer. The changes have been criticised by unions and work injury and disease victims’ advocates.

TUC head of safety Hugh Robertson commented: “This bill will mean that many workers who suffer an occupational injury or disease will no longer be able to afford to make claims against their employer or, if they do manage to fund a case, will find their damages reduced. It is a blatant assault on victims and will simply line the pockets of insurers.”

The union safety expert warned: “As many as 25 per cent of injury claims will not be brought. Those that proceed might lose up to 25 per cent of damages for the success fee and further substantial reductions for required legal expense insurance.” He says many people will no longer be able to obtain legal representation, particularly for low value or complex cases. “However, although a claim of £3,000 or £4,000 may be considered to be low value by the government, it is not low value to a cleaner who earns £6 an hour and represents four months wages.”

Robertson warns workplace safety will be another victim. “By reducing the threat of litigation in workplace accidents and diseases, health and safety at work will be undermined.”

Tony Whitston, chair of the Asbestos Victims Support Groups’ Forum UK, said dying workers are being “told that they must carry the risks of suing for compensation”, adding “isn’t the risk of losing their lives enough?” He added: “The fact is that many frail and terminally ill sufferers will no longer sue for compensation, fearing more uncertainty and stress of litigation.”

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New US chemical safe law would be good for jobs

More stringent controls on industrial chemicals could support job creation in the US while protecting health and the environment, a new report has concluded. The study, produced by the Political Economy Research Institute (PERI) at the University of Massachusetts Amherst and commissioned by the BlueGreen Alliance, shows that innovation in sustainable chemistry can reverse the industry's job shedding trend in a market that increasingly requires cleaner, safer production. The authors say the US chemical industry has shed 300,000 jobs since 1992, despite production increasing by 4 per cent per year.

The economic benefits of a green chemical industry in the United States: Renewing manufacturing jobs while protecting health and the environment warns that under the current scenario, the industry stands to lose approximately 230,000 jobs in the next 20 years. But the report argues that innovation in sustainable chemistry presents new opportunities to reverse the job shedding trend. For example, if 20 per cent of current production were to shift from petrochemical-based plastics to bio-based plastics, 104,000 additional jobs could be created in the US economy.

James Heintz, associate director of the Political Economy Research Institute, commented: “This study shows that an effective regulatory environment will support the chemical industry's ability to take advantage of new markets in sustainable chemistry. Either we can continue with weak and ineffective regulation - continuing to produce potentially hazardous chemicals while manufacturing jobs disappear - or we can move toward disclosure, regulation, and sustainability; encourage innovation; create stability for businesses and investors; and build new markets for safe and sustainable chemicals.”

Leo W Gerard, international president of the steelworkers’ union USW, commented: “Instead of our members losing quality jobs in the chemical industry and accepting the myth that policy reform will somehow cost more jobs” the proposed chemical safety law “will create sustainable, good-paying jobs while protecting the health of workers and the environment by encouraging investment in education, technology and research.”

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Sharp rise in deaths at work

There has been a dramatic upturn in the number of workplace fatalities, new official statistics show. Figures published on 28 June 2011 by the Health and Safety Executive (HSE) reveal the number of workers killed in Britain in 2010/11 was over 16 per cent up on the previous year.

The provisional data for the year April 2010 to March 2011 shows 171 workers died, compared to the record low of 147 in 2009/10. The fatality rate increased from 0.5 fatalities per 100,000 workers to 0.6/100,000.

The numbers killed in Britain's waste and recycling industry last year increased sharply, with the fatality rate now nearly 15 times the average for all workers. Nine workers were killed in the sector, compared to three deaths in 2009/10 at a fatality rate of 8.7 deaths per 100,000. Construction fatalities rose by 22 per cent, up to 50 from 41 the year before, at a rate of 2.4 deaths per 100,000 workers, four times the all industry average, compared 1.9 in 2009/10. Deaths in agriculture fell slightly, with 34 workers killed, down from 39. The fatality rate of 8.0 per 100,000 workers is over 13 times the all jobs figure.

TUC general secretary Brendan Barber expressed concern at the reversal in the recent downward trend in workplace fatalities and stressed the need for official inspections and enforcement. “The responsibility for the increase in deaths this year must be placed at the door of negligent employers, but more needs to be done to ensure that all employers protect their workers from harm,” he said.

“The government's recent decision to reduce workplace inspections and the budget cuts for both the HSE and local authorities make it more far less likely that problems will be identified before something goes wrong. Traditionally injury rates increase as we come out of a recession. If we are going to stop this year's increase becoming a long-term trend we need more inspections in the workplace - not less.”

Mike Macdonald of the HSE union Prospect said: “The increase revealed by these figures is even more alarming given that economic output has remained stagnant over the past 12 months. We fear that as the economy recovers and the workforce grows the number of workplace deaths and serious accident rates will rise even further.”

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'Model' US workplaces escape scrutiny then kill

Since 2000, at least 80 workers have died at ‘model workplaces’ the USA’s official safety watchdog OSHA has designated the nation’s safest, and which it exempts from some inspections. This is the conclusion of an eight month investigation by the Center for Public Integrity that found in 47 of these cases, inspectors subsequently found serious safety violations and, sometimes, tragedies that could have been averted.

According to the investigation, even within industries so hazardous the government targets them for intensive enforcement, ‘model workplaces’ under OSHA’s Voluntary Protection Program are exempt from these special inspections. This policy has left nearly one in three refineries off limits – with these unpoliced model refineries responsible for at least seven deaths.

According to the Center’s investigation, even when workers die and inspectors find safety violations, “model workplaces” often face minimal consequences and keep the special designation. At least 65 per cent of workplaces where a fatal accident occurred remain in the Voluntary Protection Programs.

Critics suspect some companies in VPP operate a system of ‘cosmetic compliance’, demonstrating only that they are good at preparing paperwork. Wade Smith, a former safety official for some of the nation’s largest construction contractors who now works for a consulting firm, said contractors in VPP are no safer than those that aren’t; they’re just better at looking like they’re safe. “They do their little song and dance in front of OSHA,” Smith said. “It’s just paperwork; that’s all it is.”

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HSE goes fundraising after government cuts

The Health and Safety Executive (HSE) is seeking views on its proposals for “cost recovery”, the scheme it hopes will help fill the gaping hole in its finances left by a massive government cut. On 22 July 2011, HSE opened a three-month consultation on how “cost recovery for intervention” will operate, having already agreed the underlying principle with government. The new scheme could come into operation from as early as April 2012.

Gordon MacDonald, HSE's programme director, said: “The government has agreed that it is right that those who break the law should pay their fair share of the costs to put things right - and not the public purse. These proposals provide a further incentive for people to operate within the law, levelling the playing field between those who comply and those who don't. Compliant firms will not pay a penny in intervention fees.”

Under the proposals, HSE will recover costs at current estimates of £133 per hour. Costs of any specialist support needed by HSE would also be passed on. Invoices will need to be paid within 30 days. HSE also confirmed that the new system would not replace existing cost recovery arrangements such as those covering offshore oil and gas installations, some chemical and petrochemical sites and licensed nuclear installations.

Critics of the proposals say it could lead to less reporting of dangerous occurrences, injuries or ill-health, as companies fear inviting a hefty bill from the safety watchdog. Similarly, they may be less inclined to ask for HSE advice.

An HSE impact assessment on the proposed regulation to introduce the fees system admits the watchdog is seeking to plug a the funding hole resulting from the 35 per cent cut in government funds being introduced over four years. It admits without securing make up funds, the expected “lower level of enforcement” would mean “a consequent decrease in health and safety standards throughout Great Britain, with ensuing costs to society.”

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Minister takes workers for a deadly ride

Which of the following recent incidents angered workplace safety minister Chris Grayling so much he felt compelled to issue a public dressing down to those responsible?

1. A sharp increase in workplace fatalities in the year after this government came to power?
2. A company fined £1 for criminal safety failings linked to the death of a worker?
3. A lack of Health and Safety Executive (HSE) regulatory oversight that means only one in 19 reported major injuries is now even investigated?
4. Holiday firm Butlins instructing staff to stop customers crashing into each other in dodgem cars, after some suffered injuries including broken bones?

The answer is (4). Jeremy Pardey, Butlins resort director at Bognor Regis, said the company made the decision because there have been injuries in the past, including broken bones, due to people bumping into each other. He added people have “great fun” dodging one another by crossing the circle of traffic and over taking. “The point of our Dodgems is to dodge people, not to run into people,” he said.

Butlins confirmed that people are not allowed to bump the cars for “health and safety reasons”. It did not, however, say it was obliged to do so because of health and safety regulations – it did it because it didn’t want paying guests to leave its resort with a painful souvenir.

This didn’t stop safety minister Chris Grayling seizing on the story as an excuse to add to this year’s bumper crop of attacks on safety regulation. In a letter to Butlins managing director Dermot King, Grayling stated: “I hope Butlins will make it clear publicly that its decision to ban bumping in dodgems has no basis in health and safety rules and that it has absolutely no obligation to take what I suspect will prove to be an extremely controversial decision.”

“Given the public interest in this issue I am releasing this letter to the media.”

The April 2011 letter garnered plenty of column inches. It also got a second airing in the media, when the Health and Safety Executive tamely included the dodgems story in a 23 August 2011 list of the ‘Top 10 bizarre health and safety “bans”.’ For good measure, HSE took the extraordinary decision, after discussions with the DWP press office, to posting the minister’s letter to its website.

By contrast, the minister felt no necessity to inform deadly employers of his annoyance at a sharp upturn in workplace deaths since he took over the country’s health and safety reins. The figures, released by HSE on 28 June 2011, showed workplace fatalities reported to HSE rose by over 16 per cent in the government’s first year in office. There was no Grayling comment in an HSE news release, no letter to the media and no exhortations to the CBI, BCC or other industry bodies to get less deadly.

Nor did the minister rush to his writing desk to express to the media any displeasure at the extremely controversial decision on 12 August 2011 to fine a satellite firm just £1 for criminal breaches of regulation that led to the death of a worker. And far from taking HSE to task for failing to investigate 95 per cent of reported major injuries at work, the minister instead demanded that HSE reduce inspections by a third.

Whether the minister was right to take Butlins to task is a matter of opinion. But it does suggest he’s got his priorities seriously – dangerously - out of kilter. Since announcing the government’s new safety strategy on 21 March 2011, Grayling has held meetings with 10 separate industry lobby groups, the Association of British Insurers and private insurance giant Zurich.

But while the minister has found copious face time for his firm favourites, he has refused to meet with Families Against Corporate Killers (FACK), whose membership is composed entirely of individuals who have lost a family member in often horrific and always devastating workplace fatalities. Unlike the Butlins director general, FACK got no letter from the minister, just a series of responses from DWP staff saying no meeting was possible because of “diary commitments”.

Linda Whelan, a FACK founder whose son Craig died in a workplace fireball, was part of a delegation that descended on Grayling’s DWP HQ in July 2011, only to find Grayling, who has been forewarned of the visit, was still unavailable.

The grieving mum said: “None of our family members was killed by too much regulation or employers fearing enforcement. They were killed because of the exact opposite – too little if any time spent on health and safety, and no fear of being found out.”

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