Hazards issue 114, April-June 2011
Let’s start by demolishing one myth. Britain’s workplaces are far from safe and further still from healthy. Even by the Health and Safety Executive’s self-admitted “conservative” estimates, the occupational cancer head count increases by one death every hour of every day around the clock. The real toll could be as much as twice as high.
JUST FIGHT Union-led lobbies of parliament on 2 March and 10 May 2011 warned the government attack on workplace safety will kill. Hilda Palmer, spokesperson for the bereaved relatives of campaign group Families Against Corporate Killing (FACK), said poor health and safety practices cost society billions a year, with business only bearing a small fraction of the costs. “Instead, the lion’s share is ‘cost shifted’ by business, which creates the risks, to the public purse, victims and their families,” she said.
There was way over half a million new cases of work-related ill-health in the year to March 2010. The watchdog’s injury figures for 2009/10 record 632 incidents at work where a worker lost an eye or a limb, or about two people leaving work short of body parts every working day.
The officially recorded bone-breaking frequency at work is about one snap every 20 minutes, day and night, or over 24,000 fractures every year. And HSE knows only a minority of legally reportable injuries actually get reported.
So, while the UK might have one of the better workplace health and safety records around, that’s because it has a system of regulation and enforcement that protects a lot – but nowhere near enough. And it is that fragile protection that is being smashed by the government.
The government’s ‘Good health and safety, Good for everyone’ strategy, launched by the Department for Work and Pensions (DWP) on 21 March 2011, will mean an unprecedented reduction in the number of workplace safety inspections, no proactive inspections for the majority of firms and new quickie risk assessments for millions of businesses.
Health and Safety Executive (HSE) ‘proactive’ unannounced inspections will drop by a third, or 11,000 fewer inspections a year. Local authority enforcers have been told to institute a similar cuts programme. In reality their preventive inspection function, because most of local authority enforced workplaces are designated ‘low risk’, could disappear almost entirely.
‘LOW RISK’ STRATEGY ‘SERIOUSLY FLAWED'
A government demand that local authorities undertake 65,000 fewer safety inspections each year is “seriously flawed” and will mean “many employers will think they don’t need to bother” with safety, retail union Usdaw has warned. New guidance from the Health and Safety Executive and the Local Government Group spells out how local authorities will meet a government demand to cut preventive “proactive” inspections by a third. exempting many shops, offices and other local authority enforced businesses from inspections [more].
For HSE, there will be an end to these preventive inspections across the whole of the public sector, much of manufacturing and transport, plastics, rubber, textiles, furniture, printing and paper. Sectors like quarrying and agriculture, where HSE admits there is still a “significant” risk, will fall off HSE’s radar too.
The great majority of employers in UK workplaces, including high numbers in high risk workplaces, will from here on know there is no prospect of a knock at the door from an official safety inspector, unless they call them in themselves for advice or to report an injury or a case of work related ill-health.
BODY BITS When the law is too thin on the ground and too reluctant to wave the big stick, someone at work is likely to pay the price. In the case of Cranswick Convenience Foods, which is now in HSE’s ‘don’t bother’ inspection category, that added up to more body bits on the factory floor [more].
That’s a prospect about to get a lot more remote. A fee-for-fault system, due to be in place by April 2012, is intended to bolster HSE finances. This new HSE pay-per-go regime could see HSE charging for everything from enforcement notices to routine advice and accident investigations. In the absence of preventive inspections, those bad employers most likely to hurt their staff would, commonsense suggests, be less inclined to invite a bill from HSE by admitting their crimes.
Accident reporting, anyway, is also in the government’s sights. An HSE consultation launched in January 2011 is looking at dramatically reducing the reporting requirements on employers and wiping off the record nearly a third of legally required injury reports at a stroke.
Reporting most legally ‘reportable’ incidents at work will get more difficult, regardless of the outcome of the consultation. To cut costs, HSE is closing its Incident Contact Centre, so all but the most serious reportable injuries, diseases and dangerous occurrences will have to be reported online. It has already removed telephone numbers of local HSE offices from its website, leaving workers in urgent need of assistance only able to contact their local office by fax or letter.
DEAD WRONG A union warning about the dangers of government-driven moves to introduce quickie online risk assessments for shops and other ‘low risk’ businesses as part of its new safety strategy has been borne out after another violent retail death. [more]
And getting free advice and assistance is about to get a whole lot harder. HSE’s infoline, which in 2010 received 189,188 telephone and 47,868 written enquiries at a cost of just £996,000 – a snip compared to other government advice lines – will shut from October 2011. It will not be replaced.
HSE’s budget for the production of guidance has evaporated. Instead it hopes others – industry groups, unions – will step in and produce their own. Neither can HSE campaign – farm and asbestos safety initiatives have both been shelved on the government’s instruction.
Justice will join health as a victim of the cuts. With HSE haemorrhaging staff, it now has neither has the capacity nor the brief to prosecute. It is under orders to look at alternatives to inspection and enforcement, like joint working and partnerships with industry groups. Employment minister Chris Grayling told the House of Commons in a 21 March 2011 written statement HSE would instead “concentrate efforts on higher risk areas and on dealing with serious breaches of health and safety regulation.”
HSE has become an official law enforcement agency under direct government instruction to ignore all but the most serious criminal offences at work.
LOW BLOW The government’s new safety strategy will mean an increase in deaths and injuries, leading to a rush to the bottom as cowboy companies undercut responsible employers by cutting back on safety, unions and victims’ advocates have warned [more].
It is a move that has devastated those bereaved by preventable workplace incidents. Linda Whelan (right), a founder member of Families Against Corporate Killers (FACK) whose son Craig died in a workplace fireball, said: “None of our family members was killed by red tape 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.”
In reality, the workplace is already a near-lawless zone for even the most “serious” safety criminals. Latest HSE “intervention” figures obtained exclusively by Hazards reveal in 2009/10, before the major cuts and policy changes were announced, just five per cent of major injuries – for example, blindings, amputations, serious burns - were even investigated. Only a minority of workplace fatalities and less than 1 per cent of major injuries resulted in a prosecution [See: Screw you, Hazards 114].
A pro-business review
As part of the safety reform package, the government has commissioned a further health and safety review. But this isn’t just any safety review. The government has limited its scope to “easing unnecessary burdens on business,” and has built in a pro-business majority to the advisory panel.
The terms of reference of the review, to be led by industry-favourite Professor Ragnar Löfstedt of the King’s Centre for Risk Management at King’s College, London, were published on 20 April 2011 and finalised a month later. Sticking with its deregulatory creed, the government says the initiative “is part of package of changes to Britain’s health and safety system to support the government’s growth agenda and cut red tape.”
Professor Löfstedt’s advisory panel includes three MPs, one from each from the main parties, two representatives of industry bodies and just one union representative, Sarah Veale from the TUC. The review will “explore the scope for consolidating, simplifying or abolishing regulations”, but will also “examine whether a clear link exists between regulation and positive health and safety performance” and consider if “lessons can be learned from comparison with health and safety regimes in other countries.”
It will also consider if European directives “are being unnecessarily enhanced (‘gold-plated’) on translation into UK law” – although latest evidence, an admission that the UK interpretation of an EU asbestos directive is illegally weak, suggests the opposite is the case [more].
Other areas within the review’s brief include determining “if there is evidence of inappropriate litigation and compensation arising from health and safety legislation”. One final area, looking at “whether changes to legislation are needed to clarify the legal position of employers in cases where employees act in an irresponsible manner” addresses another non-existent problem. Employers have never been held responsible for employee irresponsibility, just their (much more commonplace) own.
IT'S NOT REALLY ABOUT THE LAW The government-commissioned Löfstedt review of health and safety, which will report to ministers in autumn 2011, is not really about changing the law. It’s about risk envy – our competitors in China and Bangladesh don’t all abide by strict rules governing safety, the environment and decency at work, so why should the UK? And it is a topic on which Professor Löfstedt is an acknowledged expert. It is also the race-to-the-bottom logic that would justify forced labour [more].
Employer representatives on Professor Löfstedt’s panel will be John Armitt, chair of the Olympic Delivery Authority and Dr Adam Marshall of the British Chambers of Commerce (BCC). BCC is an avowed opponent of health and safety regulation that has used “rigged statistics” (Hazards 111) together with “deadly omissions and gobsmacking lies” (Hazards 113) in its annual off-with-their-regs manifesto.
BCC took a berth on the committee pencilled in for former HSE board employers’ representative Judith Donovan. Sources in government have told Hazards that Donovan, who supported regulation including directors’ duties for health and safety when on HSE, was vetoed by DWP. The three MP members of the panel are the Tory Andrew Bridgen, Lib Dem John Thurso and Labour’s Andrew Miller.
Professor Löfstedt’s work has not previously focussed on occupational health and safety issues. However, he is viewed as a strong anti-regulation advocate by many who have encountered him on food safety and environmental issues. He is an adjunct professor at the Harvard Center for Risk Analysis, a body which has been criticised strongly by unions, safety and environmental advocates in the USA as an anti-regulation “front” for business interests.
Throughout July 2011, in the midst of the health and safety review, Professor Löfstedt is scheduled to be running a 30-session ‘Managing hazards in Europe and the United States’ course at King’s College London. He will be working hand-in-hand with long-time collaborator and founder of the Harvard Center, Professor John D Graham. The academic’s 2001 nomination for a key regulation-busting role in George W Bush’s administration prompted a letter from 53 of his peers warning Graham’s work “demonstrated a remarkable congruency with the interests of regulated industries.”
The death of prevention
A 2007 review for HSE which looked at the the worldwide evidence of the value of proactive health and safety inspections concluded the most robust studies showed inspection plus enforcement were associated with a decline in injury rates of 22 per cent for the following three years.
Not only does inspection and enforcement work best, in many instances it is the only approach that can work. The evidence relating to new, soft interventions is much weaker and almost non-existent, the authors of the 2007 review concluded, warning the evidence did not support the argument that alternatives are effective in improving compliance with health and safety law or reducing injury rates.
When it comes to ‘slow burn’ workplace diseases, only proactive inspection can be relied on to catch firms ignoring the law. Unlike blood on the factory floor, the lag between the employer negligence leading to the exposure and the resulting disease, which can be years or even decades in the case of conditions like occupational cancer, leaves the trail cold but the sickness inevitable. Only workplace interventions today can stop tomorrow’s workplace diseases.
Silicosis is a case in point; it can develop quickly but it often takes years to appear. Quarry workers are a high risk group, but quarries are one of the groups that will now be largely left to their own devices by HSE.
History tells us this is a deadly mistake. It was an unannounced inspection of Dunhouse Quarry Co Ltd by an HSE inspector that discovered an employee had contracted silicosis and that a number of others had been exposed to levels of respirable crystalline silica (RCS) over 100 times than the current legal exposure limit. It was the same story at Border Stone Quarries where the firm neglected to notify HSE of a case of silicosis, a reportable and potentially lethal occupational disease. The same HSE inspector discovered this case during another proactive routine inspection.
The new government safety strategy is based on prioritising risks in what it judges to be industries with a high risk of occupational injury. But these do not necessarily correlate with those with a high occupational disease risk. Any chance of a coherent approach to prevention of these conditions, which are far more prevalent than workplace injuries, has disappeared entirely.
The deregulation urge is now so engrained at HSE, it routinely ignores evidence that legal standards designed to protect workers from established poisons like lead and cancer-causing chemicals are inadequate and tightening them will save lives.
Its latest denial of responsibility involves workplace dust. Unions have campaigned for years for a tightening on health grounds of the workplace dust standard, a stance backed in May 2011 by the Institute of Occupational Medicine. HSE’s own advisory committees have called for a general campaign to promote awareness of the risks. Even if HSE was willing, which is it not, it now says “constrained resources” rule out a campaign. And despite acknowledging evidence showing hundreds of lives each year could be saved if employers reduced workplace dust exposures, it describes this as “only limited benefits” so it would not be tightening the standard [more].
HSE is no longer all about health and safety. Bullied by the government and starved of funds, is moving away from a dedicated mission seeking “the prevention of death, injury and ill health to those at work and those affected by work activities” and adopting a new plan that also aims to “enable innovation that brings economic growth” [See: Screw you, Hazards 114]. In response to the government’s safety strategy, the ‘HSE Delivery Plan for the period 1 April 2011 to 31 March 2012’ outlines the steps the safety watchdog will take to “enable innovation that brings economic growth while ensuring that risks are managed properly and proportionately”.
There are plenty of government departments and agencies promoting business innovation and growth, but only one intended to have protecting the life and limb of the workforce as its sole concern. There was only one.
Targeting the sick
While work is going to get less healthy, the less healthy are going to be forced to work. When not dismantling workplace safety protection, DWP’s other preoccupation is getting the sick off benefits. This involves a two-headed approach, denying new claimants Employment and Support Allowance (ESA) and stopping payments to those already receiving sickness-related benefits.
Figures released by the government in April 2011, revealed threequarters of sickness benefit claimants had been found fit to work or had abandoned their claims before completing their medical assessment. The DWP figures cover the period from 27 October 2008, when ESA was introduced, to 31 August 2010.
Existing incapacity benefit claimants are being reassessed at a rate of 10,000 a week. DWP says under a trial completed early in 2011, almost 30 per cent were found fit for work. The problem here is that the Work Capability Assessment (WCA) system declaring them fit for work is flawed. Seriously sick people are joining those in the not-so-sick but too sick for an employer to consider taking on category in the group told to get up and work. DWP’s initial assessments of people's fitness to return to the workplace have been overturned in almost four in 10 cases in which individuals appealed.
The government unquestionably sees workplace sickness absence as a problem. But it is the benefits and absence bill that seems to be its focus, not the welfare of the sick themselves. That’s one reason its sickness absence review, announced in February 2011, is to be headed by a business lobbyist who is a vocal opponent of health and safety regulation and enforcement.
David Frost, director general of the British Chambers of Commerce (BCC) – which also has a hand in the government’s safety review - is chairing the review alongside workplace health tsar Dame Carol Black. Their brief is to “explore radical new ways on how the current system can be changed to help more people stay in work and reduce costs.”
The government says the aim is to “help combat the staggering £100 billion that working age ill health costs the economy every year.” It adds the review, which is jointly sponsored by DWP and the Department for Business Innovation and Skills (BIS), is linked explicitly to a wider review of employment law “which is looking at measures to reduce red tape and remove the burdens on business, encourage growth and maximise flexibility for employers and employees.”
It’s a one-eyed approach which has angered unions. TUC general secretary Brendan Barber commented: “The fact that the review is being conducted by a leading voice of employers’ interests, with no corresponding involvement from unions representing workers affected by sickness absence, gives us little confidence in the outcome.”
There’s an underlying assumption on the government’s part that jobs are there if workers, who aren’t really that sick, want to take them. This is an argument with two fatal flaws.
There are several unemployed people per vacancy across the UK. Sick workers, or even slightly below par workers, will hardly ever get a look in. And in certain depressed areas – those most likely to have high numbers in receipt of sickness benefits – the job shortage is more acute still. A May 2011 report from the TUC revealed that in March 2011 West Dunbartonshire was the worst place to find a job, with over 40 dole claimants chasing every vacancy. Across Britain, TUC found the number of dole claimants per vacancy has quadrupled from 1.5 in 2005 to 6 in 2011.
British workers are already among the worst protected in terms of benefits paid when off work sick. Findings of a study of 12 countries by the think tank Demos in March 2011 put Britain in eighth place in the level of protection in case of ill-health, below countries including France, Germany, the United States and Canada.
‘Of mutual benefit’, produced by the research group’s ‘Progressive Conservatism Project’, concluded: “Successive efforts to reform the way in which incapacity benefits are assessed and paid in the UK have played on a suspicion that many who claim them are ‘scroungers’ and ‘benefit cheats’ to justify increased conditionality and more stringent testing. But the truth is that incapacity benefits in the UK are not only low but also insufficient for most people’s financial needs.”
Doing a bad job
Underpinning the back-to-work drive is the supposedly self-evident claim that ‘work is good for you’. But long hours, job insecurity, punitive sick leave policies, a failure to recognise the extent of the work-related health crisis and a lack of safety enforcement means for many work is bad and getting worse.
As the government presses ahead with plans to force the sick back to work and the majority of ESA recipients into ‘Mandatory Work Activity placements’, research published in March 2011 has blown a hole in its work is good for you credo. The study adds to evidence establishing that while good quality jobs deliver health benefits, bad jobs can leave you in a worse state of health than remaining unemployed. The study concluded that while overall the unemployed had poorer mental health than those who were employed, “the mental health of those who were unemployed was comparable or superior to those in jobs of the poorest psychosocial quality.”
The Australian research team say their findings, published in the journal Occupational and Environmental Medicine, show: “The health benefits of becoming employed were dependent on the quality of the job. Moving from unemployment into a high quality job led to improved mental health... however the transition from unemployment to a poor quality job was more detrimental to mental health than remaining unemployed.”
Even by the UK’s official and seriously deficient stats, 1.3 million people currently suffer work-related ill-health. There’s not a healthy spelling of pneumoconiosis, asbestosis or silicosis – all diseases of work. And many in work, like their unemployed (or under-employed) counterparts, are also suffering the detrimental effects of poverty on health.
The sickness package comes alongside other welfare reforms that have been criticised by union, health and disability advocacy groups. And the impact at work of the safety and sickness changes will be amplified by broader government policies intended to leave the business fat cats purring.
In January 2011, the government published an ‘Employer’s Charter’. It would have been more honest to call it a “bad employer’s charter” as it does not include a single positive measure an employer might take to make work and the situation of workers better. It contains much to make it worse. It includes pointers on getting staff to work longer hours, driving through redundancies and dismissals without consultation, harassing women on maternity leave and restricting annual leave.
Changes planned for the tribunal system will make it more difficult and costly to take an employer to an employment tribunal, the only recourse for union reps facing victimisation for their safety activities or being denied their legal rights as a safety rep or time off for safety training.
Where compensation would offer some redress in those instances where a worker suffered damage to life or limb as result of employer negligence, even this is now being eroded by government. Ministry of Justice plans announced in March 2011 would rob the small minority who currently secure some compensation of part of their payment and make claiming at all prohibitively expensive for others [See: Government to rob injury victims].
SOME COMPENSATION A payout to a roofer severely injured in a workplace fall will fund an intensive rehabilitation and physiotherapy programme. Timothy Kirk, 42, fell 45 feet through a skylight. He was knocked unconscious and left in a coma for 11 days after the incident in October 2000, which happened when he stepped on a concealed skylight [more].
Professor Paul Fenn from Nottingham University’s Business School looked at the potential impact of the proposals. He concluded, in a paper to be published in the Journal of Empirical Legal Studies in September 2011, the great majority of workplace injury and disease compensation claimants, including those suffering from fatal diseases such as mesothelioma and victims of serious work accidents, would be worse off.
That could mean they are unable to finance adaptations to their homes, cover the cost of care or fund essential rehabilitation.
The sickness and safety reforms form part of a wider assault on regulation. The government’s ‘Red tape challenge’, which includes a specific health and safety topic area, is a whingers’ charter. It’s really no challenge at all, because the government has made plain it is not interested in hearing the case for regulation.
ROBBED BLIND A young man who lost his eye at work through his employer’s proven negligence has ended up without either a job or compensation. Ryan Scott, 26, said: “The past seven years have just been a nightmare. I’m distraught that I’ve lost my vision, my independence, my job, and many of my friends. I’ve found it extremely difficult to deal with.” [more]
The government’s unquestioning embrace of the business lobby’s demand for deregulation has been challenged in a May 2011 report from the Chartered Institute of Personnel and Development (CIPD). ‘The economic rights and wrongs of employment regulation’ warns proposals for deregulation should not “be driven by ideological assertion or in response to policy lobbying by influential vested interests.”
CIPD’s chief economic adviser Dr John Philpott commented: “The fact that business organisations seem content to accept official economic assessments that conclude regulations impose costs, while questioning those that conclude there will be net benefits, implies a deregulatory mindset that owes more to ideology than evidence. It is time UK business stopped seeing red whenever employment regulation is mentioned and instead adopted a more balanced, evidence-based perspective.”
In an 11 May 2011 speech to the Institute of Directors, Chancellor of the Exchequer George Osborne announced the scope of deregulation at work was to be extended. He said: “My message today is straightforward – this coalition government is unequivocally pro-business.” David Cameron’s number 2 added there would be a “wholesale review of employment law in this country”.
Commenting on plans to dismantle redundancy, minimum wage, employment tribunal and other workers’ rights, the chancellor concluded: “Some of these may be controversial. Unions and interest groups may oppose them. So I say to the business community – to all of you in this room – don’t be passive observers. Don’t stay on the sidelines. Get stuck into the argument and support us in making the case for growth. An enterprising Britain cannot be built by government alone.”
The real job killers
Once you’ve accepted the government’s motive is not primarily to help the sick or make work safer, there’s one argument left in the ministerial locker – protecting workers through decent employment and safety rights is killing the UK economy. Only this too is untrue – something apparent whenever an impartial academic inquiry is undertaken. And new studies reinforcing the regulations are good for you message come along with dizzying frequency.
CIPD’s May 2011 report notes “there is little convincing economic evidence that employment regulation accounts for the long standing productivity gap between the UK and major competitor economies.”
According to CIPD’s John Philpott: “A balanced assessment shows that underlying problems of structural unemployment and productivity shortfalls in the UK economy cannot be attributed to any negative impact of employment regulation, but are due instead to relatively low rates of capital investment, long-standing deficiencies in the supply and quality of work related skills, poor management of available skills in the workplace… Further de-regulation of an already relatively de-regulated labour market will do nothing to help solve these structural problems and might well exacerbate them.”
Workplace safety regulations, a particular irritant to the business lobby are, studies indicate, real-life job generators. ‘Regulation, employment, and the economy: Fears of job loss are overblown’, an April 2011 research paper from the US Economic Policy Institute (EPI), concluded regulations to protect workers, consumers and the environment do not have a negative impact on the job market and, in some cases, actually spur job creation [more].
A May 2011 report from the US reached an even more striking conclusion. If the government fails to introduce new safety regulations, jobs in the US chemical industry will quickly disappear – but the introduction of stringent new chemical safety laws could lead to a dramatic reversal of the job loss trend.
‘The economic benefits of a green chemical industry in the United States’, produced by the University of Massachussetts Amherst’s Political Economy Research Institute (PERI), found the US chemical industry had shed 300,000 jobs since 1992, despite production increasing by 4 per cent per year. The report projected a further 230,000 would be lost over the next 20 years if nothing is done. But introducing a new Safe Chemicals Act to promote sustainable, green chemistry could instead create hundreds of thousands of new jobs [more].
Closer to home, a 2011 research report published by HSE concluded the UK regulations on the design and management of construction projects are cost-effective and beneficial. Over two-thirds of firms questioned (69 per cent) in the evaluation of the Construction (Design and Management) Regulations 2007 (CDM 2007) said the benefits of the regulations were “moderate” or “better than moderate”.
Almost nine out of 10 (86 per cent) rated the costs of the regulations as “low”, “low to moderate” or “moderate”. And almost all firms responding said the law was an improvement (87 per cent) and they clearly understood its requirements (96 per cent). Most of the respondents (85 per cent) also agreed the regulations assist in managing health and safety. The pilot evaluation found “positive signs” the regulations were meeting their five key objectives, with evidence of three being met and two being partially met.
One of the laws most vehemently opposed by industry was REACH, the regulations placing tighter controls on chemicals across Europe. Industry estimates put the cost of the regulations at up to 100 times the European Commission’s figure, and said jobs would be lost or relocated to less well regulated economies.
The industry was scaremongering. “Nearly four years on since REACH came onto the books, it is clear that manufacturers are easily managing to meet their new obligations and that the oft-threatened relocations have not materialised,” reports a 2011 briefing from the European trade union think tank ETUI. “In the 10 years from 1999 to 2009, the chemical industry achieved average annual growth of 0.4 per cent despite the 2009 economic crisis. In fact all the stakeholders are now agreed that the reform is a good thing and are working to see that its implementation delivers results.”
If the government was interested in evidence it would have increased staffing and resources at the Health and Safety Executive. It has slashed both. It would ensure criminals breaching safety law were accountable under that law. But even the most serious workplace safety crimes usually escape even investigation.
There is no reasonable justification for allowing greater freedom for firms to operate unsafely and outside the law. The government’s policies for the workplace pander to the must irresponsible urges of business. They also guarantee that while some corner-cutting employers can stuff their pockets, the price at the workplace will be paid in broken bodies and shortened lives.
It’s not really about the law
The government-commissioned Löfstedt review of health and safety, which will report to ministers in autumn 2011, 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? And it is a topic on which Professor Löfstedt is an acknowledged expert.
None of the 16 Acts “owned and enforced” by HSE fall under his review team’s remit, including the Health and Safety at Work etc Act 1974 – the big daddy of all workplace safety law – and the and the Health and Safety (Offences) Act 2008. Instead, the focus will be on the other statutory instruments owned and enforced by the HSE and its local-authority partners – estimated by the DWP at around 200 – and associated Approved Codes of Practice that provide advice on compliance with health and safety law.
Other laws dealing with safety but not falling under HSE’s remit, including fire safety, transport safety, product safety and food hygiene, will not fall within the review’s scope. Other issues that are widely perceived to be health and safety, such as working time, but not ‘owned’ by the HSE, will also not be covered.
If the Health and Safety at Work Act stays, the Health and Safety Executive stays – something insiders say causes employment minister Chris Grayling some discomfort.
But the government hopes Professor Löfstedt will give it license for a backdoor erosion of safety rights and of HSE’s enforcement role. In the US, the professor has been a prominent advocate against regulations, not because there were no health benefits but because under his “risk-risk” analysis they would be costly to employers who would then be disadvantaged in global markets.
In the case of Portland cement, a potential human carcinogen, Löfstedt’s March 2010 report concluded “putting forward stringent regulation on the US cement industry, will lead to a risk transfer from the United States to offshore (most notably China), leading to negligible environmental improvements for the United States and the global community.”
The March 2010 “risk-risk” analysis was press released by the cement industry. The paper contained all the key talking points from the business lobby’s anti-regulation template. Regulations cost jobs, regulations are expensive, regulations are unfair to domestic industry and regulations don’t work. It’s a package found repeatedly to be based on inflated estimates of costs and consequences, and a blind eye to the potential benefits.
Equally concerning, it is informed by an assumption that regardless of the costs, it should be the world’s dirtiest players that set the standard. The logic would also make forced labour an economic necessity – it’s a practice that remains a significant problem in Europe and worldwide, and which presumably offers some economic advantage to less scrupulous employers.
This isn’t a theoretical consideration. ‘The hidden one-in-five - Winning a fair deal for Britain's vulnerable workers’, a 2006 report prepared for the TUC by the independent Policy Studies Institute, warned the deregulation of the UK labour market had already led to the emergence of extreme vulnerability amongst numerous groups, including nationals and migrant workers, subject to labour exploitation, abuse and criminality.
DWP news release and Good health and safety, Good for everyone strategy [pdf]. BIS news release on the government’s wider deregulatory package. DWP health and safety policy webpages. Related CBI news release, EEF news release and TUC news release.
Job killers – a Hazards report spelling out why the government is wrong to say health and safety “stifles” business and “holds back economic growth”.
DWP news release and Löfstedt review terms of reference [pdf]. Prospect news release. Sourcewatch. Call for evidence and final terms of reference for the inquiry, DWP, 20 May 2011 and related DWP news release.
International comparison of health and safety responsibilities of company directors, Research report 535, HSE, 2007.
Grayling: new welfare rules will give jobseekers the opportunity to gain valuable experience of the workplace, DWP news release, 14 March 2011.
P Butterworth, LS Leach, L Strazdins, SC Olesen, B Rodgers and DH Broom. The psychosocial quality of work determines whether employment has benefits for mental health: results from a longitudinal national household panel survey, Occupational and Environmental Medicine, Online First, 14 March 2011, doi10.1136/oem.2010.059030 [abstract].
Fenn P, Rickman N. Fixed recoverable costs: A case study in policy and empirical legal studies, Journal of Empirical Legal Studies, volume 8 (3), due for publication September 2011.
The economic rights and wrongs of employment regulation’ CIPD, May 2011.
Regulation, employment, and the economy: Fears of job loss are overblown, EPI, April 2011. www.epi.org
Evaluation of Construction (Design and Management) Regulations 2007: Pilot study, Research Report, RR845, HSE, 2011 [pdf].
What role can the unions play in Europe's industrial policy? REACH shows the way,
ETUI Policy Brief. European Social Policy. Issue 3/2011 [pdf].
The IOM’s position on occupational exposure limits for dust, May 2011 [pdf].
EPA'S proposed NESHAP for Portland Cement: Ignoring the risk-risk trade-off, Ragnar Löfstedt and Amanda Leiter, King’s College London, March 2010. Full study, executive summary and Portland Cement Association news release.
A trade union perspective on combating trafficking and forced labour in Europe, Jeroen Beirnaert, ITUC Project Coordinator Forced Labour and Trafficking, ITUC paper published in ’ Combating Trafficking in Human Beings for Labour Exploitation’, Conny Rijken (ed.), 2011, Wolf Legal Publishers.
The hidden one-in-five - Winning a fair deal for Britain's vulnerable workers, a report by the Policy Studies Institute for the TUC, 2006 [pdf].
How many body bits cause offence?
When the law is too thin on the ground and too reluctant to wave the big stick, someone at work is likely to pay the price. In the case of Cranswick Convenience Foods, that added up to more body bits on the factory floor.
The Hull-based food manufacturer, which is now in HSE’s “don’t bother” inspection category, was fined £14,000 for repeated safety failings which meant two workers in Barnsley suffered severe injuries in separate incidents just three months apart.
The first incident, on 29 December 2009, resulted in employee James Hardcastle, 32, having his left hand amputated after it became trapped in the rotating knives of an industrial tenderiser.
On 4 March 2010, a fellow worker severed the ends of two fingers on his right hand while feeding plastic film into a machine designed to seal food into packaging. Both incidents at Cranswick Convenience Foods could and should have been avoided according to HSE, which prosecuted the firm’s operating company, Studleigh-Royd Ltd. The company pleaded guilty to two separate criminal breaches of the Provision and Use of Work Equipment Regulations 1998.
Barnsley Magistrates' Court heard that in relation to the incident involving Mr Hardcastle, the tenderiser machine was poorly guarded, with workers able to access dangerous moving parts simply by using a metal object, like a knife, to override a guard interlocked by a magnetic sensor. Bypassing the interlocked guard made it quicker and easier to feed meat into the machine, but in doing so operators put themselves at risk.
That was the case when Mr Hardcastle was operating the machine - his gloved hand was drawn into the machine and his arm became trapped between rotating knives. Engineers had to free him by dismantling the machine, but his left hand later had to be amputated.
The guarding was also inadequate on the sealing machine that injured the second Barnsley worker, who does not want to be identified. He too was able to access a danger zone with his right hand and his fingers were caught between a sealing head.
In February 2011, Studleigh-Royd Ltd was fined £8,000 relating to the offence involving Mr Hardcastle and £6,000 on the second offence. The firm was also ordered to pay £8,387.70 in costs.
Another ‘low risk’ death at work
A union warning about the dangers of government-driven moves to introduce quickie online risk assessments for shops and other ‘low risk’ businesses as part of its new safety strategy has been borne out after another violent retail death.
A 43-year-old shopworker attacked at Stanningley Wines in Leeds on Saturday 19 March 2011, died of his injuries on 21 March. The death came less than two weeks after shopworkers’ union Usdaw warned the Health and Safety Executive’s (HSE) proposed online risk assessment for shops, which assumes shops to be ‘low risk’, could encourage a “dangerously complacent” approach to health and safety.
The union’s response to an HSE consultation said it was “totally wrong” to classify shops as low risk, especially as a number face a very real threat of robbery.
Usdaw general secretary John Hannett said: “By giving the impression that spending 20 minutes going through the online questions an employer will have met their legal obligation to do a risk assessment, the HSE could end up encouraging a dangerously complacent approach to health and safety management.”
And Doug Russell, the union’s health and safety officer, said: “The nature of the business being assessed and its location is obviously crucial and this simplistic assessment completely misses the point that the risks faced by a local bookmakers or off-licence will obviously be very different to say a second hand bookshop or hairdressers.”
The Leeds death was the second violent shopworker killing in West Yorkshire in just over a year. Gurmail Singh, 63, was beaten to death in a Huddersfield convenience shop in February 2010 when he confronted shoplifters.
The government says HSE’s new ‘Health and safety made simple’ package will extend the quickie approach criticised by Usdaw to other ‘small and low risk employers.’
UK to amend too weak asbestos law
The UK version of a European Union-wide law on asbestos safety is to be amended after the European Commission (EC) ruled it is illegally lax. The TUC said the EC ruling nails the myth the UK “gold-plates” Euro laws (Hazards 113), one of the claims by the government and the business lobby to be examined by the Löfstedt review of health and safety [See: Screw you, Hazards 114].
But the Health and Safety Executive (HSE) has now “confirmed its agreement” with the EC’s finding that the UK had actually under-implemented Europe’s asbestos law. Unions had maintained from the outset the UK law fell dangerously short of the legal controls required by a 2003 EC directive “on the protection of workers from the risks of asbestos.”
In discussions at the Health and Safety Commission (HSC) – now the Health and Safety Executive (HSE) board - prior to the introduction of the Control of Asbestos Regulations 2006, the weak interpretation was only pushed through in a vote. This exceedingly rare measure was necessary because union representatives refused to accept the downgrading of essential clauses in the original European directive that formed the basis of the law. The weakened version was bulldozed through by then HSC chair Bill Callaghan, with the support of employer representatives.
The February 2011 “reasoned opinion” from the EC, in response to a 2006 complaint from the Asbestos Removal Contractors Association, gave the government two months to amend the law or face possible action at the EU’s Court of Justice.
In response to an approach from Hazards, HSE issued a statement admitting the UK asbestos law was not good enough. The 28 April 2011 statement noted: “The UK has confirmed its agreement to a reasoned opinion by the European Commission. Discussions are under way with the Commission about next steps.”
The EC found the UK had misinterpreted requirements on “sporadic and low intensity exposure to asbestos” to justify the exclusion of considerable amounts of asbestos work from asbestos licensing, health assessments and exposure recording requirements.
TUC general secretary Brendan Barber said “this is another nail in the coffin of the myth that the HSE has been ‘gold-plating’ regulation. European regulations are there to protect workers and governments should see them as being minimum standards rather than trying to weasel out of their commitments.”
Stop it, you’re killing us
The government’s new safety strategy will mean an increase in deaths and injuries, leading to a rush to the bottom as cowboy companies undercut responsible employers by cutting back on safety, unions and victims’ advocates have warned.
TUC general secretary Brendan Barber warned the government’s new safety strategy is a lose-lose package. “Employers need to know that there is the possibility of a safety inspector visiting, otherwise there will be no incentive for them to ensure they are protecting their workers,” he said.
“Removing proactive inspections from a large number of workplaces means that employers can get away with ignoring the law until they kill or seriously injure someone. This is in no-one's interests and will mean an increase in deaths and injuries, leading to a rush to the bottom as cowboy companies undercut responsible employers by cutting back on safety.”
He added: “The proposals are not only bad for workers' health and safety, they will also be bad for the economy as the health service and benefits system have to deal with the aftermath of more injuries and illnesses caused through unsafe work. The strategy is not about better regulation, it is about deregulation and is all part of a bigger plan to reduce the rights that workers have to safety and fair treatment.”
Mike Macdonald, a negotiator with HSE inspectors’ union Prospect, said the new strategy “shows that health and safety regulation in Britain is now driven by the government’s wish to cut spending rather than by a professional assessment of what action saves lives and avoids accidents. The key question should be what type of regulation best suits British business and its workforce, not a simplistic dogma that all regulation is bad.”
Linda Whelan, a founder member of Families Against Corporate Killers (FACK) and whose son Craig died in a workplace fireball, said: “None of our family members was killed by red tape 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.”
Top docs back union dust plan
The Institute of Occupational Medicine has backed a union push for a dramatic reduction in the amount of dust allowed in workplace air. Unions have for over two years been pressing an intransigent Health and Safety Executive (HSE) to reduce the occupational exposure limit for general workplace dust to a quarter the current level and to run a campaign to raise awareness of dust dangers. HSE’s own advisory committees also called for such a campaign as “a priority”.
But HSE has refused to budge on both issues – even though it admits workers are getting sick when exposed at the current allowable limit and enforcing a tighter standard could save hundreds of lives each year.
In a paper to the HSE board’s December 2010 meeting, it said “constrained resources” ruled out a campaign. And despite acknowledging evidence showing hundreds of lives each year could be saved each year if employers reduced workplace dust exposures, it describes this as “only limited benefits… from reducing this threshold” so HSE “would not be seeking to do this in pursuit of a long-term reduction in respiratory disease.”
In response to HSE’s stance, unions last year agreed, as an interim measure, to introduce their own “precautionary standard” of 1mg/m3 for respirable dust, a quarter the current official standard. The unions noted that health effects had not only been seen at the official limit of 4mg/m3 for “a range of so-called low toxicity dusts”, but for some dusts even a 1mg/m3 limit was not protective.
In May 2011, the Institute of Occupational Medicine (IOM) said it was backing the move to a lower, safer, standard. An IOM position paper noted the organisation “considers that the current British occupational exposure limits for airborne dust are unsafe and employers should attempt to reduce exposures to help prevent further cases of respiratory disease amongst their workers.”
The position paper notes that as HSE’s own advisory WATCH committee has advised “there is no threshold for the effects of dust on the lung then… reducing exposure should pro rata reduce the risk of disease in the future.” According to IOM: “We suggest that, until safe limits are put in place, employers should aim to keep exposure to respirable dust below 1mg/m3…”
A TUC spokesperson commented: “This report shows that the HSE could slash lung disease, including cancers, simply by reducing the current exposure standards which are clearly far too high. However it is equally important that any standards are adhered to and that will become far more difficult as the HSE cut pro-active inspections and reduce access to guidance.”
The IOM’s position on occupational exposure limits for dust, May 2011 [pdf].
Delivering for health: HSE action on occupational respiratory disease [pdf], paper to the HSE board meeting, December 2010 [minutes, pdf].
Government to rob injury victims
Government changes to the compensation system will deny thousands of sick and injured workers access to justice, unions and legal experts have warned.
Justice Secretary Ken Clarke told the Commons in March 2011 that lawyers would no longer be able to claim “success fees” from the losing side, and should instead receive a share of the damages. “We are trying to deliver a civil justice system which is more equitable, accessible and just,” Mr Clarke told MPs. The government says it hopes the changes will act as a disincentive to anyone bringing “spurious cases”.
But TUC general secretary Brendan Barber said the government move “has nothing to do with justice, it is simply lining the pockets of insurers at the expense of claimants seeking compensation for injuries caused by the negligence of others. “This is yet another attempt to reduce the rights of those at work to secure justice when employers break the law.”
Tom Jones of the law firm Thompsons commented: “This is the dawn of access to limited justice for the lucky few. Insurers will save tens of millions of pounds whilst injured people who have a valid claim but one that isn’t absolutely open and shut, will be unable to find a lawyer able to help them. The lucky ones who can find a lawyer will be hit by deductions from their damages.”
David Bott, the new president of the Association of Personal Injury Lawyers (APIL), said it was “plain wrong” for injury victims to take a cut of up to 25 per cent of their compensation to meet legal costs. “Claimants have not chosen to litigate. They did not arrive at the decision after a cost-benefit analysis,” he said. “They were injured and rightly expect redress. All that they want, and all that the law can give them, is to get back to where they were before the injury.”
Payout funds essential rehab
A compensation payout to a roofer severely injured in a workplace fall will fund an intensive rehabilitation and physiotherapy programme. Timothy Kirk, 42, fell 45 feet through a skylight. He was knocked unconscious and left in a coma for 11 days after the incident in October 2000, which happened when he stepped on a concealed skylight.
His son was unable to recognise him a month after the fall because of the extent of his injuries.
Mr Kirk (right) suffered a fractured pelvis and femur and head and facial injuries. He also had to undergo a tracheotomy to aid his breathing, as well as three operations on his stomach to reduce internal injuries. He now has difficulty walking.
He received a £340,000 out-of-court settlement from his employer, R&K Ward Roofing Contractors Ltd, to help cover his ongoing physiotherapy and lost earnings.
David Urpeth of law firm Irwin Mitchell represented the injured worker, said: “After the suffering Mr Kirk had gone through, it was crucial that he was able to access the care he needed in order to help him recover and rebuild his life.
“He has been left unable to work, and is only able to walk by using walking sticks and it was vitally important for his future life that he received the most comprehensive medical treatment possible for his many injuries.”
Injured man robbed blind
A young man who lost his eye at work has ended up without either a job or compensation. Ryan Scott, 26, was employed by Goodfellas (UK) Ltd as a labourer at the site of the Goodfellas Club in Sheffield at the time of the injury in March 2004.
He was asked to remove an awning attached to a caravan on the site in preparation for the development of the club’s car park. While taking the awning apart, a metal peg attached sprang up and struck him in the left eye.
A specialist at Sheffield’s Royal Hallamshire Hospital operated the same day, but told him he had lost a crucial parts of his eye, with evidence of both retinal detachment and haemorrhaging. After another operation the following day, Ryan spent several days in hospital before being discharged on heavy medication. He remained extremely ill, and was both heavily medicated and regularly hospitalised for the next few months.
Despite making a successful claim for compensation to cover his lost earnings, personal injuries and future care costs, he has not received a penny. His employer was not insured and because the company ceased trading the claim cannot be enforced.
Ryan (above) said: “The past seven years have just been a nightmare. I’m distraught that I’ve lost my vision, my independence, my job, and many of my friends. I’ve found it extremely difficult to deal with.” He added: “I’m told my eye will be painful forever and it will always affect how I live my life. I’ve attempted other jobs but the conditions have made it very difficult to carry out the work so I’m still looking for employment or training.”
David Urpeth, of personal injury law firm Irwin Mitchell, represented Ryan. He wants to see the formation of an Employers’ Liability Insurance Bureau (ELIB) that will protect victims of work-related injuries and ill-health where there is no insurer or they can’t be traced. It would work in a similar way to the Motor Insurers’ Bureau, which has protected victims of uninsured drivers for the past 40 years.
“As the situation now stands, people injured may be denied the financial security they are rightfully entitled to either if their employer has no insurance or employers’ insurer cannot be traced,” he said. “That cannot be fair or just, and this issue needs an immediate solution.” He said Ryan’s injuries “could have been very easily avoided” if he had been provided with a safe system of work, suitable work equipment and appropriate protective clothing. “Unfortunately now he has been left in an awful situation.”
He added: “Severely injured workers are missing out on funds to cover their care and rehabilitation as well as lost earnings. In some of the more serious cases people are left with severe disabilities that mean they will never work again and will need care for the rest of their lives. If there is no insurance or it is insufficient, this will ultimately be paid for by the taxpayer via the NHS but in some cases this just isn’t enough.”
Safety laws are good for jobs and workers
Regulations designed to protect workers, consumers and the environment do not have a negative impact on the job market and, in some cases, actually spur job creation, according to new research.
A paper from the US Economic Policy Institute (EPI) shows that recent criticism surrounding regulations' impact on jobs is misguided and not reflective of economic data. ‘Regulation, employment, and the economy: Fears of job loss are overblown’ concludes economic studies provide no evidence that regulation impedes job creation or leads to significant unemployment.
Overall, “the preponderance of studies of various industries suggests that regulations have had a close to neutral effect or a moderately positive effect on employment levels,” according to the EPI paper.
The report says since 2007, US government data on “extended mass job layoffs” indicate that “only a very tiny fraction of such job layoffs (about 0.3 per cent of the 1.5 million such layoffs each year) were attributed by employers to government regulations/ intervention.” By comparison, “extreme weather-related events have caused more extended mass job layoffs than government regulation, according to the data.”
Authors John Irons and Isaac Shapiro also found “under-regulation” played a role in the BP Deepwater Horizon oil spill disaster and its aftermath, which, in addition to its environmental and human toll, continues to have a significant negative impact on the Gulf region's economy and job market.
The paper notes “regulations have generally and consistently struck a reasonable balance, with their benefits to health, safety, and well-being far exceeding their costs.” It found “debates over regulations have often relied on exaggerated estimates of the compliance costs they will produce” (Hazards 113). It concludes: “Overall, the picture that emerges from this review is a positive one. For decades, regulations have generally and consistently struck a reasonable balance, with their benefits to health, safety, and well-being far exceeding their costs.”
Regulation, employment, and the economy: Fears of job loss are overblown, EPI, April 2011. www.epi.org
New chemical safety law 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) 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. Under the current scenario, the industry stands to lose approximately 230,000 jobs in the next 20 years.
But the new 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.
“Instead of our members losing quality jobs in the chemical industry and accepting the myth that policy reform will somehow cost more jobs,” commented Leo W Gerard, international president of the steelworkers’ union USW, proposed new more stringent chemical safety laws “will create sustainable, good-paying jobs while protecting the health of workers and the environment by encouraging investment in education, technology and research.”
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.”
‘Low risk’ strategy ‘seriously flawed’
A government demand that local authorities undertake 65,000 fewer safety inspections each year is “seriously flawed” and will mean “many employers will think they don’t need to bother” with safety, retail union Usdaw has warned.
In a 25 May 2011 statement to Hazards magazine, the union said it is “extremely worried by this government’s continued ideological attack on health and safety. The DWP proposals for a so-called ‘lighter touch’ approach flies in the face of the evidence.” Guidance published by the Health and Safety Executive and the Local Government Group spells out how local authorities will meet a government demand to cut preventive “proactive” inspections by a third.
According to Usdaw, the new approach, based on “risk ratings” that would exempt many shops, offices and other local authority enforced businesses from inspections, “will expose workers to an increased risk of injury or ill health as financially hard-pressed employers let standards slip. How will inspectors be able to identify breaches of the regulations if they are not allowed to carry out preventive inspections? For most workplaces, an inspector will only get involved after someone has been killed or seriously injured – when it is too late.”
The union adds that the narrow safety focus of the system means work-related health problems are not being considered in the enforcement approach. “It also ignores solid evidence from the UK and the US that shows that health and safety laws are not a burden on business,” said a union statement. “On the contrary they are good for the economy as a whole and employers who comply benefit from having a fitter workforce and a more sustainable business… The loss of 65,000 preventive inspections every year and yet another review based on the assumption that health and safety regulations are an unnecessary inconvenience send the wrong message to employers.”
• It’s not really about the law
• How many body bits cause offence?
• Another ‘low risk’ death at work
• UK to amend too weak asbestos law
• Stop it, you're killing us
• Top docs back union dust plan
• Government to rob injury victims
• Payout funds essential rehab
• Injured man robbed blind
• Good for jobs and workers
• Chemical safety law good for jobs
• ‘Low risk’ strategy ‘seriously flawed’