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TOTAL SUCK UP
10 reasons the Health and Safety Executive top brass makes us sick
faith not facts
10 reasons the Health and Safety Executive
The government is introducing a corporate
crime bill with no jail terms for corporate criminals. The Health and
Safety Executive is ripping up large chunks of its “naming and shaming”
database. And the next official health and safety visit you get may be
from an “adviser” not an inspector. Hazards editor
Rory O’Neill investigates the watchdog that doesn’t want to
It is easy to criticise the Health and Safety Executive (HSE). It has a tough job, few resources and faces conflicting pressures from unions, campaigners and employers.
But a Hazards investigation of HSE’s recent practice – including a forensic examination of its recent policy statements and a series of 20 Freedom of Information Act requests – reveals HSE’s top brass is making up policy on the hoof and tripping over itself to accommodate a deregulatory push from government and the employer lobby.
Here’s Hazards’ top 10 reasons HSE sucks.
1. A criminal record
HSE is to ditch from its naming and shaming ‘prosecutions’ and ‘notices’ database (1) all records more than five years old. The database is now five years old and the cull of records has started. In fact, as naming and shaming goes this is already about as criminal friendly as it gets. There is no published list, for one. There is a database, and if you are motivated to search it you can find the information.
HSE refused a Hazards Freedom of Information Act request for copies of any records to be removed from the database. To justify permanent disposal of the records, HSE’s freedom of information unit said the Rehabilitation of Offenders Act requires details of prosecutions of individuals to be removed. It added: “It would not be fair not to remove those companies who would reasonably demand what the justification was for their health and safety convictions to be recorded long after their individual competitors have had their convictions removed.”
But there is no legal requirement to remove the details of company prosecutions, and there are plenty of reasons to retain them. A complete database would reveal companies with a long history of minor offences, which could indicate there was a major accident waiting to happen, for example. The database also allows outsiders – researchers, campaigners or the media – to investigate the impact of HSE enforcement activities. In 2005, Hazards used the database, for example, to show HSE had never taken a prosecution under the regulation requiring provision of suitable seating at work (Hazards 91).
And the argument seems a rather transparent excuse for inaction. Few company directors of large or medium sized companies have ever been prosecuted and none has ever been convicted of a health and safety offence. It is only the bosses of small firms that have found themselves convicted, and they face personal and company penalties with a far more devastating impact than those handed down to faceless major companies when facing comparable charges. And the Data Protection Act means Freedom of Information Act requests to government departments routinely treat requests about individuals in a different way to those about companies, where privacy rules do not apply and it is normal practice to provide much more data.
HSE could remove all named individuals from the list. But it could and should keep offending companies – not covered anyway by the Rehabilitation of Offenders Act – on the list. Besides, HSE is going well beyond the requirements of the act. Not only is it including companies in the scope of the record cull, it is according to HSE’s Bootle–based Freedom of Information Unit making sure “entries from the HSE prosecution and notices database are removed in a rolling programme. When the database is updated each week records of five years old are automatically removed.” This means even those employers who have turned up in the Crown Court on safety charges in the intervening period are getting their slate wiped clean.
Under the Rehabilitation of Offenders Act, departments are not required to delete records of criminals who have appeared before the Crown Court in the intervening period. That, said most safety cases are heard in magistrates’ courts, so this shouldn’t be too much of an impediment. Improvement and prohibition notices have never been before the courts, so are being erased regardless.
HSE is sticking to its guns, and erasing away, going well beyond the requirements of the rehabilitation act. A 3 February 2006 email from HSE confirmed that an appeal by Hazards for information intended for removal had been turned down because “the information you are seeking is already available to you through HSE’s website, therefore our review has concluded that the exemption was correctly applied, and that the decision not to supply the information was correct.” Infact, Hazards requested from HSE that could only by identified by HSE as only it is aware of “all records intended for removal, immediately prior to their removal.”
The fact that an entirely unidentifiable quantity of information is being deleted automatically each week, that it is impossible to identify on the database which records are about to be removed permanently, that the records under immediate threat of removal are the sole target of the information request and that the explicit purpose of the request was to avoid this purge, was not dealt with in HSE’s response.
One company which will soon have a major safety crime expunged from the record will be BP, which was fined £1m in January 2002 after a massive explosion at its Grangemouth refinery. The US Department of Justice is currently investigating the firm after the death of 15 workers in a March 2005 explosion at its Texas City plant, for which it has already been fined £12m. It is understood the investigation extends to the conduct of the London-based global BP board. Implicated in the disaster is BP’s ‘safety culture’, something that could only be adequately evaluated with access to long-term data. The company’s safety approach is a global matter, signed off by London-based BP chief executive Lord John Browne.
Not that BP’s board need worry about any of this. Surging world
crude prices have helped boost the oil firm's fortunes. On 7 February
2006, BP unveiled 2005 full-year profits of $19.31bn (£11.04bn).
2. HSE loves bosses
While BP will soon see its murky record wiped clean, HSE infact rehabilitated BP pretty promptly after the £1m slip up. Two weeks after HSE announced in November 2002 that BP had topped the safety penalties list for the year, it issued a news release praising the same company for a stress project at the same plant where two serious safety offences had recently taken place, prompting the prosecution.
And there is a permanent reminder of BP’s corporate responsibility on the HSE website. In a piece of priceless PR, BP – a UK-headquartered company still under criminal investigation in the US - is featured as a case study of director leadership in health and safety (2). Other safety criminals highlighted on the website include Esso and serial offender Grampian Country Foods Ltd.
HSE has also quietly forgotten the findings of its own April 2004 poll which found most employers really believed health and safety regulations don’t hamper their business (Hazards 91). Instead, to the delight of CBI, IoD and other business lobby groups, it is fishing desperately for ways to remove the “burden” of safety regulation from business.
Not that companies have to worry too much even if they are put before the courts for safety crimes. The total fines bill for Great Britain has not yet exceeded £13m for a single year. It is a sum that could be paid from a whip round in some of Britain’s better paid boardrooms. BP CEO Lord John Browne, thought to be Britain’s best paid boss, pocketed an estimated £8m last year.
3. See no evil
Health and safety isn’t a top priority in Britain because HSE is in denial. Its ‘Health and Safety Statistics 2004/05’ report (3), published in November 2005, claims “2.0 million people were suffering from an illness they believed was caused or made worse by their current or past work.” If that were true it would be problem enough. But it is not.
The findings, based on the Labour Force Survey, grossly under-estimate the true toll. Hundreds of thousands of cases of hearing loss, vibration white finger, work-related heart disease and neurological disorders are missed. And the HSE’s official estimate of cancer prevalence, extrapolated from a discredited US study, misses tens of thousands of cases a year (Hazards 92). HSE gives no estimate for the total number of deaths related to work each year, but Hazards puts it at up to 50,000.
Accidents too are under-estimated. A study published in January 2006 by the Farmers' Union of Wales, for example, revealed that although 40 per cent of farmers said they had suffered an injury while working, almost 90 per cent admitted that they did not tell the HSE. And HSE’s accident figures discount the biggest single cause of workplace fatalities, occupational road traffic accidents.
4. Don’t look now
HSE doesn’t know what it is doing. In November 2005, Hazards used the Freedom of Information Act to ask for the number of workplace inspections undertaken by HSE inspectors and the number of workplace visits by HSE specialist inspectors for each of the last five years. HSE said “the information you requested is not held by the Health and Safety Executive.”
The evidence that does exist isn’t encouraging. TUC’s November 2004 ‘Focus on union safety reps’ report found almost four in 10 (39 per cent) said their workplace had never been inspected by either HSE or a local authority inspector (Hazards 88). HSE itself reported that in 2000/01 just 19 per cent of major injuries were investigated, and inspection and enforcement activity has been curtailed since then (Hazards 86).
Inspections anyway aren’t what the used to be. Inspectors are now under instruction to undertake quickie topic based inspections, just checking on certain priority hazards. HSE inspectors who have contacted Hazards say their skill levels are being eroded as a result. HSE funded research last year concluded topic based inspection “has made no direct impact on overall health and safety performance” (4).
5. Reluctant regulator
HSE these days seems embarrassed to be an enforcement agency. And it shows in its recent enforcement record. Figures released in October 2005 show the number of HSE prosecutions taken and enforcement notices issued have fallen dramatically, despite repeated assurances from Health and Safety Commission chair Bill Callaghan that his would not happen under HSE’s “2010 and beyond” strategy (Hazards 86).
The ‘Offences and Penalties Report 2004/05’ (5) shows prosecutions of employers have fallen by over a third in the past three years (Hazards 92). HSE brought 712 prosecutions in 2004/05, down from 928 in 2003/04. It secured just 673 convictions, down from 887 the preceding year.
The total number of separate safety charges brought (informations laid) fell from 1,986 in 2001/02 to just 1,267 in 2004/05, a drop of over 36 per cent. Convictions fell from 1,522 in 2001/02 to just 999 in 2004/04, a drop of over a third.
Average fines per prosecution increased to £18,765 from £14,303 (more than one charge may have been brought per case). However, very occasional large fines appear to be skewing this figure – the 2004/05 figure included the then record £2m fine on Thames Trains for the Paddington rail crash (Hazards 86). Hazards used the Freedom of Information Act to request from HSE the median fines figure, which give a more accurate indication of the size of fine a firm might expect, and was again told “the information you requested is not held” by HSE.
Even HSE’s periodic enforcement “blitzes” are not the blitzes they used to be. A Hazards analysis of HSE press reports on regional and national enforcement blitzes from May 2002 found the ratio of prohibition notices to sites visited had slipped steadily from 1 in 2 down to less than 1 in 5. An April 2005 news release did not give the number of prohibition notices issued, but reported that just 214 notices – prohibition notices and improvement notices combined – were issued in visits to 1,170, or less than one official notice of any kind for every five site visits.
HSE inspectors were however increasingly likely to request “voluntary cessations of work (VCW)”, although when questioned by Hazards HSE said no information was held on the number of VCWs. In the blitz reported in April 2005, 244 VCWs were issued, out-numbering prohibition and improvement notices combined. VCWs are an employer-friendly soft alternative to improvement or prohibition notices. They don’t appear in the HSE’s naming and shaming “notices” database. And failure to comply with a VCW doesn’t create the risk of court action with the potential for a prison term. Ignoring an official notice does.
This is part of HSC’s official “2010 and beyond” strategy for health and safety (6) which says “much of this strategy focuses on new ways of securing compliance voluntarily. But the regulator will continue to have a part to play.” The role of that regulator is clearly diminishing, and the strategy signals a clear shift to an advisory role with HSE “providing effective support free from the fear of enforcement”.
Section 18 of the Health and Safety at Work Act places a legal duty on HSE to make adequate arrangements for enforcing health and safety law. But the current HSE strategy is turning HSE by degrees from an enforcer to an observer, on the sidelines dispensing advice, studiously avoiding placing enforcement burdens on firms.
Soon HSE may not have the numbers to do the job right anyway, as it is haemorrhaging experienced staff. HSE staffing levels have fallen for three successive years, according to HSE’s annual report for 2004/05, with just 3,903 staff in post on 1 April 2005. In 1994, HSE had 4,545 staff.
6. Cash giveaway
While HSE might be struggling for cash, some are doing very well indeed out the watchdog, as in increasing slice of its budget is handed out to consultants.
HSE Infoline provides a telephone advice line, performing functions that before privatisation were done by HSE admin workers, who could seek assistance from an inspector where necessary. Sometimes these contacts led to inspection visits.
But HSE Infoline is not really any part of HSE and all you get is advice – an employee doesn’t even have the leverage with a recalcitrant employer of having received “official information” from an HSE. The amount of cash HSE Infoline receives from HSE has increased dramatically year on year. In 2000/01 it received £581,000 of HSE’s cash. By 2004/05, this had risen by almost 50 per cent to £829,000.
This is small beer compared to the massive payouts to some HSE contractors. Top of the heap is Promotion Logistics, which has received £12.5m for work running from 2002 to the end of 2008. McKann Erikson bagged £3.77m for a three-year project completed in July 2004. And Octagon Sponsorship Consulting received £1.187m for work completed at the end of 2005.
Overall, HSE’s spend on external health and safety related consultancies has increased year-on-year from £19.9m in 2000/01 to £26.2m in 2004/05, up from 8.2 per cent of total budget to 9.6 per cent in 2004/05.
Undertaking scientific research for HSE was a particularly lucrative
pastime for some contractors. WS Atkins received over £2.4m between
2000/01 and 2004/05, BOMEL Ltd received over £2.9m, and Serco Assurance
over £3.5m. Companies and private consultancies were the most common
recipients of funds – universities did not appear in the top three
recipients in any of these years.
7. You do it
If HSE’s government determined budget explains some of the erosion of service, it cannot explain its fervoured enthusiasm for the government’s new “better regulation” agenda. There is no evidence that health and safety regulation is not working – in fact HSE’s own research proves precisely the opposite.
But a series of HSE strategy documents have shown the safety watchdog bounding away from its respected inspection and enforcement role and into a compliance assistance and advisory role.
‘HSC’s intervention strategy’ (7), a report to the September 2005 HSC meeting, said HSE would “pilot ways to identify and recognise good performance”, raising the spectre of self-regulation and US style voluntary protection programmes where companies can get guarantees of no visits from the safety watchdog by undertaking certain safety measures. In the US, it can also mean escaping prosecution even if clear legal breaches come to light. After objections from the TUC rep on the Commission, this proposal was postponed until a more detailed paper could be prepared and submitted to an HSC meeting this year.
HSE’s draft “simplification” plans (8), published in November 2005, take HSE straight down the deregulatory road. HSE said the plan “sets out HSC/E's determination to develop legislation that is easy to understand and comply with to help secure stronger commitment from business.” It added: “It also supports our risk based, targeted approach to enforcement.” Under anticipated “outcomes”, it identifies the 33 per cent reduction in inspections highlighted in the Hampton report, the government’s deregulation template (Hazards 91).
Using the Freedom of Information Act, Hazards did attempt to find out how many fewer HSE inspections were anticipated as a result of the new strategy. HSE provided no information, saying no targets had been discussed or set.
In October 2005, the Health and Safety Executive and the Local Authorities Coordinators of Regulatory Services (LACoRS) launched the Large Organisations Project Pilot (LOPP), which HSE hopes will be the first step towards alternatives to enforcement, and which will involve even at the pilot stage 17 firms and about 1 million workers – almost 4 per cent of the UK working population. A 3 October 2005 HSE news release said at a third and final object of LOPP is “at a later stage, to begin preliminary discussions exploring whether the organisations are interested in some kind of formal recognition of good health and safety performance and, if so, how this might be achieved. This will feed into a separate work stream looking more widely at this issue.” This is not too opaque code for self-regulation.
Of the first five firms to sign up for the pilot, four - Asda, Tesco, BAE Systems and Astra Zeneca – have been convicted of safety offences in the last five years. The fifth, Greggs, received an improvement notice in 2003 requiring it to undertake a risk assessment on transport movements. Even good firms don’t always get it right, but it might take an inspection to prove it.
A Department of Trade and Industry’s (DTI) retail enforcement pilot launched in June 2005 is already operating a “traffic light” system in which ‘excellent’ businesses which DTI says have demonstrated high standards through self-reporting, customer feedback or external accreditation, are not inspected by health and safety and food safety inspectors (10). DTI anticipates extending the scheme, with frequent inspections to be restricted to “poor” businesses. However, even the prestigious market leaders in the retail sector are prone to safety lapses. Asda, IKEA, Sainsbury’s and Tesco were all fined for criminal breaches of safety law in 2005.
And none of these alternatives to enforcement are cost free. All will divert resources from existing enforcement efforts. And some, like the LOPP initiative, are massive pilots affecting tens of thousands of workers – infact, the total involved in the LOPP project will run to hundreds of thousands. These are unproven initiatives using large sections of the workforce as guinea pigs for a safety critical issue, not protected by proven formal inspection and enforcement measures. HSE doesn’t have the baseline data on inspections, enforcement and injuries and ill-health to properly evaluate these pilots. Nor has it revealed the details of its evaluation protocols. And as HSE has told Hazards in a Freedom of Information Act request, it doesn’t even hold data on inspections, so can’t credibly form any reasoned conclusions on alternatives to inspections.
The watchdog is clearly running ahead of the pack when it comes to adopting the deregulatory agenda. HSE badly misjudged feeling within the Commission on the issue of directors’ duties. A Health and Safety Executive (HSE) paper to the 6 December 2005 HSC meeting recommended there should be no new legal directors’ duties (11).
HSC rejected the recommendation and instead backed the position argued by unions and safety campaigners and will now be recommending there are positive legal duties on directors to ensure their organisations comply with safety law. The decision was supported by the three employer representatives on HSC. It was also agreed there should be more authoritative guidance, more enforcement, greater penalties and more use of director disqualifications.
8. Pilot privatisation
Workplace Health Connect, an entirely private occupational health initiative run entirely on public funds, will start up in late February 2006 with a £20m DWP budget. HSE says the scheme’s five regional “Pathfinder” centres will provide a service to nearly 40 per cent of small and medium sized enterprises in England and Wales.
According to ‘HSC’s intervention strategy’, a report to the September 2005 HSC meeting, HSE would via Workplace Health Connect “provide active expert support to small firms, for health issues, free from regulatory pressure.”
HSE insiders have described Workplace Health Connect as a “pilot privatisation”. Workplace Health Connect is scheduled to undertake 5,700 workplace visits over the next two years, which works out at over £3,500 per visit. Most of its functions would be jobs that would normally fall to HSE – the only part that is missing is enforcement.
Unlike HSE, Workplace Health Connect will only respond to approaches from employers. It explicitly bars direct contact from employees. And if this new breed of safety visitor sees “matters of evident concern” – in other words, blatant risks to workers – they have, unlike HSE inspectors, neither the licence nor the power to act. It is not what they are paid to do.
Other prominent, cash-rich projects have succeeded only in disappointing. Unions have been pressing for roving safety reps for 15 years, a move which at a stroke could introduce a nationwide network of trained and effective occupational health specialists at minimal cost (12). We know they work – the earliest HSE backed research showed this. But neither HSE nor the government are keen on giving union reps new rights (Hazards 89). Instead they introduced a diluted version of roving pres, the £3m three year Worker Safety Adviser scheme, now entering its final year.
Only two of the 11 bids approved in last year’s funding round were union-led, although four others included unions as partners. The projects covered just 707 small and medium sized enterprises in Britain. The National Audit Office estimates there are 3.8 million small businesses in the UK, so the WSA projects last year covered less than 0.02 per cent of the total.
9. Blind faith not facts
The Health and Safety Executive is following a self-regulatory approach with evangelical zeal. It has been unable to provide any evidence to justify a shift towards greater “voluntary compliance”. In fact, the overwhelming evidence suggests the combination of rigorous inspection and enforcement is far and away the most effective way to ensure workplace laws are obeyed (Hazards 88).
Instead, HSE is the vanguard for the government’s deregulation message, despite a July 2004 Work and Pensions committee report (Hazards 87) dismantling and rejecting every major tenet of its “2010” strategy (Hazards 89). The committee report called for the number of safety inspectors to be doubled, safety reps’ rights to be dramatically improved, including a new right to issue union prohibition and improvement notices, and said that HSE should not proceed with its plan to shift resources from inspection and enforcement to fund education, information and advice.
HSE appears incapable of making intelligent decisions on the basis of a reasoned analysis of available evidence. Its recommendation to a December 2005 Health and Safety Commission meeting that there should be no new duties on directors was the latest illustration of its anxiety to produce the “right” answer for the government, regardless of the facts.
HSC rejected the recommendations in the HSE paper, because they were not supported by evidence. Two weeks later this message was reinforced on the 20 December 2005 publication of a joint House of Commons home affairs and work and pensions committees’ report. The cross-party report echoed the recommendations of unions and campaigners and called for explicit safety duties on company directors and a prospect of jail terms for criminal safety neglect.
When it comes to health and safety, evidence frequently plays little part in policy decisions. The government rejected outright the findings of the Work and Pensions select committee in 2004 (Hazards 89). The committee had scrutinised the work of HSE/C and had called for stronger enforcement, more resources for HSE and more safety reps’ rights.
HSE for its part rejected the findings of it own consultation on workplace stress, where almost all respondents supported an approved code of practice on stress with legal weight. Instead, HSE introduced voluntary stress standards which have little evidential value if a case goes to court. And it has now shifted away from formal consultation, with many consultations on crucial health and safety issues reduced to “discussions”, frequently only online and often with short deadlines limiting the scope for considered response. If you are not listening, there’s not really much point in receiving considered answers.
10. Tomorrow’s world
The next health and safety visit to your workplace is increasingly unlikely to be an HSE inspector. It could be a lower grade HSE adviser with no enforcement role. It could be one of the consultants paid to deliver most of HSE’s regular safety and health awareness days. Or it could be a Workplace Health Connect adviser who may do everything an HSE inspector does. Except respond to a request from an employee, inspect the workplace or enforce the law.
It may even be someone with no interest at all in the risks you face because of the job you do. The government’s October 2005 ‘Health, work and well-being’ strategy (13) is encouraging a wholesale workplace assault on “lifestyle” health risks.
Exercise, healthy diet and an end to those bad personal habits are going to be the order of day. But making the job healthy and safer will be, increasing, off the menu.
4. Evaluation of FOD's Topic Based Inspection Approach, RR368, 2005.
and Penalties Report 2004/05.
6. The strategy for workplace health and safety in Great Britain to 2010 and beyond. HSC, February 2004.
7. Developing our Intervention Strategy, paper to HSC 6 September 2005 meeting, HSC/05/65. [pdf]
11. Directors’ responsibilities for health and safety - proposed report to the government, Paper to HSC meeting, 6 December 2005. [pdf]
13. Health, work and well-being – Caring for our future.
ISBN: 1-84388-608-4. HM Government, October 2005. DWP news release and
full report [pdf]
HAZARDS MAGAZINE WORKERS' HEALTH INTERNATIONAL NEWS