The UK Health and Safety Executive (HSE) is not the regulator or enforcer it used to be. And it is becoming harder to determine what the resource-starved, industry-captured regulator really wants to be.
“The Tory government has ended a 40-year social partnership with the TUC and the unions over health and safety,” states TUC head of safety Hugh Robertson. “Ministers now decide who represents workers on the HSE board, joint committees have been wound down and there’s less consultation with the HSE.”
Helping Great Britain work well, the HSE strategy hatched internally without a formal consultation and published in February 2016, says we must “act together” but offers no more than a commitment-free, target-free brochure to spell out what - if anything - this means (Hazards 133).
The one organisation that did enjoy private talks with HSE prior to publication of the plan was employers’ lobby group EEF. It followed up by nabbing the helm of HSE, with former EEF chair and chief executive Martin Temple announced by ministers as the new HSE chair, taking up the post on 1 May 2016.
That’s not the end of it. The HSE business plan 2016/17, published in April 2016, revealed swingeing cuts to the watchdog’s government funding over the next three years. HSE’s new strategy includes no new targets, concrete plans or regulatory proposals. “The HSE’s Business Plan for 2016/17 gives some insight into why,” says Robertson, pointing to the bleak ‘financial outlook’ spelled out in the plan.
“In 2009/10, before the coalition government came to power, the HSE received £231 million from the government. In 2019/20 it will receive £128 million. A reduction of 45 per cent in ten years.”
Cut HSE, hurt workers
HSE’s already dramatically curtailed government funding will drop by 9 per cent over the next two years, according to the business plan. Taxpayer funding is forecast to fall from £140.9m in 2016/17 to £128.4m in both 2018/19 and 2019/20.
NO COMPARISON Under president Barack Obama, the US has introduced stronger workplace injury and disease reporting rules and a more protective standard on silica exposures. Under prime minister David Cameron, the UK has introduced weaker workplace injury and disease reporting rules and has defended a less protective standard on silica exposures. [more]
Robertson says the business plan has a relatively good section on enforcement, “but there is nothing about how they are going to achieve it with the current number of inspectors, and the almost complete lack of any inspections in the local authority sector.” He adds: “On regulation, the paper is clear. There are no proposals for any new regulations in the areas responsible for 70 per cent of work-related sickness absence (stress and MSDs [musculoskeletal disorders]), or on anything else for that matter.”
There is “no doubt” the cuts in the HSE budget are already having an effect, the TUC safety specialist says, with the decades long downward trend in work-related fatalities and ill-health stalled and in some instances reversed.
Whether HSE is either willing or able to deal with work-related ill-health at all is in question. HSE’s medical division has been dissolved, with the few surviving staff absorbed into other parts or the organisation (Hazards 132).
When it comes to its non-regulatory, non-enforcement ambitions, HSE is altogether clearer about its plans. The one-time dedicated watchdog is recruiting a £100,000-a-year commercial director to greatly ‘accelerate’ its shift to money-spinning private contracts.
In the job specification, the safety regulator says “our ambitions include capitalising on our considerable know-how and expertise on a commercial basis.” It adds HSE is “now looking to accelerate our growth with ambitious new major commercial opportunities.”
NOW JUDGE Hazards warned in 2014 that the new head of HSE Dr Richard Judge was under government instruction to ‘commercialise’ the watchdog (Hazards 127). The former head of the Insolvency Service has taken to the task with gusto, while also delivering a new strategy devoid of ambition or targets.
HSE notes the move, which will also involve a push to secure overseas sales for its services, is a response “to pressures on government funding, to support our Chief Scientist and others in developing opportunities for investment in our science by others, and to develop our people in a way that enables a sustainable high performance for commercial clients.”
The commercial director job spec notes: “The postholder will be expected to grow major commercial contracts from £4.5m pa to around £15m pa by 2020. This is in addition to HSE's standard services portfolio.” The commercial director will manage a team of 45 HSE employees, although HSE says “those working on major commercial projects can come from teams across HSE so at any given time the resource can be much higher.”
The new focus on commercial activities will inevitably heighten concerns about HSE’s commitment to its inspection and regulatory functions, with an additional fear resources may be diverted to this private work. The large team to be marshalled by the incoming HSE sales supremo appears to be drawn from HSE’s existing staff numbers.
The perception that HSE’s new mission is to become the business-friendly, business consultancy of choice helping those with deep pockets at home and abroad rather than a dedicated, state-funded regulator helping those facing work hazards on its own doorstep has been reinforced by recent policy moves.
HSE’s revised Enforcement Policy Statement (EPS), presented to the March 2016 meeting of HSE’s board “for information only”, says HSE will “adopt a proportionate approach…” with the safety regulator “recognising the importance of supporting businesses to comply and grow.” The statement emphasises the need for “a sensible and proportionate approach to managing health and safety, focusing on significant risks.”
It is no longer enough to just break the law, you have to really break the law.
“Applying the principle of proportionality means that our inspectors should take particular account of how far duty holders have fallen short of what the law requires and the extent of the risks created,” the statement notes.
Construction union UCATT said the “life-threatening” policy changes had been imposed on HSE’s board as part of the government’s light-touch Regulators’ Code. UCATT acting general secretary, Brian Rye, added: “These new guidelines are immoral and venal. There is no ‘proportionate’ approach to health and safety – you are either safe or you’re not.”
Prospect, the union representing HSE inspectors, has warned that government funding cuts have been so severe, the UK can no longer meet the minimum labour inspection standards set by the International Labour Organisation (ILO).
TUC’s Hugh Robertson says these HSE and local authority funding cuts have brought an end to almost all unannounced safety inspections. “High risk events such as Buncefield are prioritised at the expense of ‘low-risk’ issues affecting many more people… we are seeing tens of thousands of workers being exposed to dangerous chemicals because they are deemed ‘low risk’.”
He adds: “If no-one is going to enforce the law then the law becomes useless. However, given the 45 per cent cut in the budget, it is wrong to put the blame on the HSE. The deregulatory agenda comes from the government.
“The less the HSE can do, the less enforcement, the more employers will be able to get away with breaking the law, and breaking their workers.”
Nudging in the right direction – just not here
The UK government’s attachment to “nudge theory” is part-and-parcel of David Cameron’s ‘anything but rules’ commitment (Hazards 122). The government has championed the approach via its once in-house and now arms-length but ‘in partnership with the Cabinet Office’ Behavioural Insights Team. But that doesn’t mean it is a good idea and, at least as far as workplace health goes, it has been an inauspicious flop, according to the TUC.
The union body points to the Responsibility Deal on workplace health (Hazards 121) which the government quietly abandoned last year. “This attempted to promote a voluntary approach to health issues around food, alcohol and the workplace through getting pledges from manufacturers, retailers or employers,” notes TUC head of safety Hugh Robertson. The package, he says, was “viewed by most public health experts as being totally ineffective. The evidence is that regulation can be far more effective than behavioural interventions, as shown by a range of public safety or health issues, from seat belts use to workplace smoking.”
But he says there are instances in which a nudge can have its uses “if used properly and in addition to regulation” – and the US safety regulator, OSHA, is doing just that. In May 2016, OSHA introduced a new rule requiring employers in high-hazard industries to send OSHA the injury and illness data they are already required to collect, to be posted on the agency’s website.
OSHA head David Michaels said: “Our new reporting requirements will ‘nudge’ employers to prevent worker injuries and illnesses to demonstrate to investors, job seekers, customers and the public that they operate safe and well-managed facilities. Access to injury data will also help OSHA better target our compliance assistance and enforcement resources at establishments where workers are at greatest risk, and enable ‘big data’ researchers to apply their skills to making workplaces safer.” The information can be used in competitive tendering and to name and shame the worst employers, says OSHA.
TUC says if the UK authorities want to nudge employers into safer and healthier behaviour, the US is showing it the way to go. According to Robertson: “The TUC will be calling on the Health and Safety Executive (HSE) to do that here. We already have a prosecutions database. An injury one is just the next step forward.”
In contrast to the US approach on injury and disease reporting, the UK has under the current government dramatically weakened the scope of the reporting requirements on employers (Hazards 118).
HSE pimps out its services as regulating takes a back seat.
|•||Cut HSE, hurt workers|
If you think the Health and Safety Executive chief executive should spend his time improving workplace health and safety, instead of converting HSE into a cash-chasing, semi-retired regulator, tell him. www.hazards.org/safetypimp
|•||Nudging in the right direction – just not here|
|•||Our safety is not for sale, Hazards 127, June-September 2014|