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Hazards 122, April-June 2013
Thick and fast: HSE damaged by interminable reviews and 'stupid' interference
The government just can’t stop asking “what’s wrong with Health and Safety Executive?” Hazards editor Rory O’Neill says HSE’S problem is patently obvious - ministers have tied its hands, slashed its budget and hijacked it.

David Cameron has made plain he sees workplace health and safety controls as an intolerable nuisance, and has embarked on an unceasing quest to prove it.

In October 2010 Lord Young, a Cabinet minister under Margaret Thatcher, delivered his David Cameron-commissioned ‘Common sense, common safety’ report of “a Whitehall-wide review of the operation of health and safety laws and the growth of the compensation culture.”  

It set in train moves to restrict official safety inspections to a small minority of workplaces - although many turned out to be high risk, particularly if you consider the health rather than just the safety risks of the job (Hazards 112). It also kicked off a David Cameron-championed multi-pronged government assault that has dramatically curtailed access to compensation for work-related injuries and disease [see: Robbed!].

No matter that Lord Young’s starting assumption that there is a “compensation culture” turns out to be untrue, with figures obtained by Hazards showing fewer than 1-in-7 people suffering an occupational injury or disease actually receive compensation [see: Robbed!]. For occupational diseases alone, this drops to just 1-in-26. For most occupational cancers, there’s barely any prospect of compensation at all.

INDUSTRY PUPPET When the business lobby brays for less safety regulation, prime minister David Cameron jumps – despite evidence this ‘red tape’ is good for workers and the economy.

Another government commissioned review, by Professor Ragnar Löfstedt (Hazards 117), reported in November 2011 and resulted in what the TUC described as a “stupid and dangerous” move to exempt many self-employed workers from health and safety laws. It was also cited by government to justify the move to restrict injury and disease compensation, something that was never in fact recommended or supported by Löfstedt.

The latest morale-busting probe, the second Triennial Review of HSE since the government took office in 2010, was launched on 25 April 2013. The government said the review “will assess whether there is a continuing need for HSE’s functions, as well as whether it is complying with the principles of good governance.”

Minister for employment Mark Hoban said: “In 2010 we acted to close down unnecessary public bodies and ensure that those that remained were fit to deliver public services efficiently and effectively.” The government said then it would look at ‘sunsetting’ both regulations and regulators.

The Department of Work and Pensions announcement (DWP) of the latest review, said it “will assess how the functions contribute to the core business of HSE and DWP, and whether these functions are still needed. If the conclusion is that the functions are still required, the review will then examine whether HSE as currently constituted remains the best way to perform those functions, or if another delivery method might be more appropriate.”

Martin Temple, currently the chair of the manufacturing industry lobby group EEF and its former director general, will lead the review, which will be overseen by an independent challenge group, which includes a representative from both the CBI and the TUC.

It may need challenging, as EEF’s stance on workplace safety recently has been distinctly muddled but has retained a very government-like line on safety ‘burdens’.
Its February 2013 report, ‘Making health and safety work for business: Removing unnecessary health and safety burdens’, said manufacturing companies are seeing “significant benefits” from investing in safety, but are still finding time to moan about “safety burdens”.

Despite reductions in the number of regulations and the increasing invisibility of HSE, the survey of over 200 manufacturers found ‘negative perceptions’ included firms claiming an “increase in the burden and cost of complying with more regulation” had led to a deterioration in the relationship between firms and the safety regulator.


Starved watchdog

HSE union PCS fears the Triennial Review could be used to justify another of the government’s universal cure-alls – privatisation.

PCS said the enforcer had already cut its staffing in half since 2004 and had closed its information line, which handled around 50,000 calls per year, saying “we fear the latest review will act as an excuse for the government to further privatise HSE work.”

It added: “By 2014 the body will have had to reduce its budget by £80m-£85m a year which will directly lead to an increase in deaths, injuries and illnesses. This government's continued attack on HSE flies in the face of the public response which has always been overwhelmingly supportive of the public body.”

Outgoing HSE chief executive Geoffrey Podger, who has been effectively sidelined after losing a series of battles in Whitehall that saw a breakdown in his relationship with ministers, is putting a brave face on it.

In a 25 April 2013 internal memo to all HSE staff marking the start of the review, Podger – whose job will come up for grabs in the summer - said “next year we have an agreed budget from the Department for Work and Pensions of £165 million. In our judgement this will be sufficient to cover the 2013/14 business plan including planned staff numbers. This assumes that we continue to deliver, as colleagues have very creditably done, planned savings and income generation measures (including FFI).”

But the Fee For Intervention (FFI) money is capped at £17m for 2013/14, which gives a top line total of £182m, compared to the £239.4m HSE received from DWP in 2009/10, the last year before the current government took power.

The Podger memo warns staff there is in all likelihood worse to come. “The general assumption has to be that we will need to deliver further expenditure reductions over and above those currently planned. We will be looking very closely at all options over the coming weeks: our aim will be to maintain a properly supported and integrated organisation which can achieve the maximum for health and safety from the resources at our disposal.”

One problem facing the watchdog is the government imposed rule barring it from unannounced inspections in most workplaces (Hazards 121). This particularly affects ones designated ‘low risk’, although this injury-based designation pays little regard to the sometimes extremely serious occupational disease risks associated with jobs.

Unless inspectors hit up the same relatively small group of firms for FFI money through a frantic programme of re-inspections, the FFI money could dry up pretty quickly. The alternative is inspectors are left twiddling their thumbs and the HSE budget shrinks still further. Without the FFI cash, HSE’s income from government is down over 30 per cent in just five years.

In the US, HSE’s equivalent Occupational Safety and Health Administration (OSHA) is legally barred from forewarning firms of a pending inspection. Here unannounced inspections are a very rare exception, not the rule.


Board stupid

There are concerns the government is easing the way for even more contentious changes by stacking the HSE board with less critical, government approved appointees. All three of the non-executive board members added to the board this year have caused consternation and charges of government interference.

New ‘public interest’ board member George Brechin, who might be expected to speak for occupational disease victims, vulnerable workers and safety campaigners, is a retired NHS chief executive.  The Guardian noted: “George Brechin, a former NHS executive, who got the nod from government above other nominated candidates with obvious expertise. To the surprise of safety campaigners, two of the most admired in their field were not even shortlisted.” These included Louise Taggart, a workplace injury lawyer member of Families Against Corporate Killlers (FACK). Her brother, Michael Adamson, was electrocuted at work aged 26.


A decision by the government to impose an “employee interests” representative on the Health and Safety Executive (HSE) board who did not have the support of trade unions has led to serious concerns about the independence of the official safety watchdog. The government is legally required to consult with “bodies representing employee interests” before appointing the three employee board members, who have always been active trade unionists supported by the TUC.
    This year the TUC supported a candidate who is both on the TUC’s general council and has an enviable track record on safety issues, Matt Wrack, the general secretary of the Fire Brigades Union (FBU). The government instead hand-picked a retired union general secretary, Jonathan Baume, who had not been nominated by a single union.
    According to TUC head of organisation Kevin Rowan: “The decision not to appoint Matt Wrack shows exactly what the government wants, which is a compliant board there to administer the organisation and make sure it delivers what the government wants. It wants to smother any independence and any challenge.” He said as a result “we will end up with a board of professional committee-members”, adding that with the exception of the two remaining union-nominated non-executive board members, all “are either retired or semi-retired consultants.”
    Rowan warned: “The losers will not be the TUC, but the credibility of the government’s claim to have an independent HSE and ultimately the workers whose lives and health will be put at risk.”
    Commenting on the government snub to Matt Wrack, the union’s general secretary, FBU president Alan McLean said: “The decision of the government not to appoint him suggests a serious weakening of any commitment to health and safety. Firefighters know very well that health and safety is not a matter for silly press stories – it is frequently a matter of life and death. The government’s decision further threatens the future of health and safety provision for workers in the UK.”

The person replacing TUC head of safety Hugh Robertson in one of the three ‘employee interest’ seats on the board, has no current connection with the union movement and was not nominated by any union.

Jonathan Baume, a retired union general secretary, was preferred to the better qualified and TUC nominated candidate Matt Wrack, general secretary of firefighters’ union FBU and currently a member of the TUC’s general council [see: Look who’s on board]. Jonathan Baume missed his first HSE board meeting, informing HSE he had a “prior engagement.”

John Morgan, an ‘employer interest’ board member appointed on 1 May 2013 with the personal approval of the prime minister, was head of BP Alaska when the division committed a series of safety and environmental crimes that led to a record fine and the company being given five years probation by US federal authorities [see: Safe hands?].

With the exception of the two TUC-nominated board members, all of the HSE board’s non-executive directors are retired or semi-retired consultants. All are from a management background. And all can claim a tidy £16,000 plus expenses for just 30 days work a year.


Unsightly growth

Wider cross-departmental government initiatives are putting additional pressure on HSE. On 8 March 2013 business minister Michael Fallon invited “businesses and regulators” to help fashion a 'growth duty' for regulators – a proposed legally-binding measure that “will require regulators to take into account the impact of their activities on the economic prospects of firms they regulate.”

A BIS news release announcing the quickie six week consultation, Non-economic Regulators: Duty to Have Regard to Growth, which “businesses were  invited” to consider ahead of a 19 April deadline, said: “The proposed ‘growth duty’ will ensure that enforcement activity of these regulators, including the Health and Safety Executive, Environment Agency and Highways Agency, imposes minimum burdens that could hold businesses back, while upholding the highest standards of public protection.”

Again there is a presumption that safety requirements must be burdensome, without acknowledging the business and cost case for not sickening, maiming and killing working people.

IN OR OUT?  The government’s latest deregulation push will see self-employed workers ‘who pose no risks to others’ exempted from safety law. TUC says the move is “stupid and dangerous” and could cause “deadly” confusion as to who is covered by the law and who is not.

TUC head of safety Hugh Robertson commented: “High quality, safe work will help promote growth, but it is a pleasant addition to the greater benefit of having a happy healthy population. To achieve that we need strong, properly enforced regulation.”
He added: “If on the other hand we believe that regulation is simply there to promote business and help profitability then we might as well just hand over regulation-setting to the CBI. Mind you, they seem to be almost doing that, as the press release announcing the consultation exercise asks for the views of business, but not of workers or the public. That says it all really.”

All of this is occurring in the context of more general government pressure to remove “red tape”. Chancellor George Osborne’s March 2013 Budget announced a “second phase of the Red Tape challenge” will begin in “summer 2013”.

HSE, meanwhile continues to present the product of these interminable attacks undermining how it works and restricting what it is allowed to do as a good news story for health and safety. It’s just the evidence tells a different story.

One example is the government demand in 2011 for a dramatic reduction in the number of Health and Safety Executive (HSE) workplace safety inspections nationwide, the move supposed to allow resources to be concentrated on ‘high risk’ employers.

But while official figures obtained by Hazards show unannounced HSE inspections overall have dropped by over a third since 2011, inspections in high risk workplaces have fallen too. The highest risk firms, those covered by the safety watchdog’s Hazardous Installations Directorate (HID), fell by almost 40 per cent. The official statistics show HSE created 3,622 inspection records in 2010/11, this dropping to 2,219 in 2011/12. There was only a marginal (3 per cent) increase in HID “regulatory activity” recorded by HSE over the period. Inspections by HSE’s Office for Nuclear Regulation (ONR) also fell, down from 2,092 in 2010/11 to 2,075 in 2011/12.

Construction, one of the other industries supposed to benefit from a greater concentration of HSE resources on high risk workplaces, seems to have been unaffected.

An HSE snapshot examination of safety conditions on Britain’s construction sites found no improvement in standards since a similar inspection blitz last year.
Both concluded “nearly one in five construction sites visited” were sub-standard, with the latest figures suggesting there has been a slight increase in the proportion of negligently run sites. During a month long initiative from 18 February to 15 March 2013, the percentage of sites receiving HSE notices for criminal safety shortcomings rose marginally, from 17.9 per cent in 2012 to 18.3 per cent in 2013.

HSE has found its Fee for Intervention (FFI) scheme, which came into force in October 2012, is billing employers for a “material breach” of health and safety law after about one-third of inspections.


Legally dumb

HSE’s job is about to get harder, believes the TUC. The Deregulation Bill announced in the 8 May 2013 Queen’s speech will pave the way for self-employed workers ‘who pose no risks to others’ to be removed from the scope of the Health and Safety at Work Act. The union body’s head of safety, Hugh Robertson, branded this government move to relax workplace safety controls as “stupid and dangerous.”

According to Robertson, the move makes no sense as the law only requires action to prevent risks; if there is no risk, then there is no problem to solve. Instead, the government is introducing a system where the self-employed will be unsure of their legal position – and this confusion could be deadly. “Given that the most dangerous industries all have a high proportion of self-employed people in them (agriculture, construction etc) anything that confuses the situation is a recipe for disaster… hundreds of thousands of other people simply will not know whether they are covered.”

Robertson concluded: “This stupid and dangerous proposal is being done in the name of reducing burdens. How it is going to remove any burdens is beyond me.” He said it was “an ideological move from a government that is solely interested in deregulation, or even worse, the illusion of deregulation, regardless of the cost. No-one is claiming that it will do anything to improve health and safety and it certainly is not going to simplify anything.”

According to Robertson, the government’s determination to “nudge rather than regulate” will hand safety criminals greater latitude to maim and kill. He warns that the approach promoted by the government’s soon to be part-privatised Cabinet Office Behavioural Insights Team – the ‘Nudge Unit’ – is already having an impact on workplace health and safety.

Robertson said the government is “ensuring” the Health and Safety Executive (HSE) turns as many of its legally-significant Approved Codes of Practice (ACoP) as possible into legally irrelevant guidance. This includes the big daddy of all the safety codes, the ACoP to the management regulations [see: Safety is not just nice, it is necessary].


When the TUC’s new assistant general secretary took up his post in March 2013, he didn’t imagine workplace health and safety would be top of his to-do list – but it was.
    According to Paul Nowak: “Given all that is going on in the world with unemployment, cuts, pensions, attacks on trade union rights and the general fall in living standards for everyone who is not a banker or company director, it may seem strange that one small decision has got me hot under the collar, that is the decision to remove an Approved Code of Practice (ACoP) to the Management Regulations.”
    But unions had been quick to draw the dangers to his attention. “Getting rid of some code of practice may not seem a big thing but safety professionals, campaign groups and trade unionists are enraged that, after consulting on whether to withdraw it, the Health and Safety Executive (HSE) has decided to ignore the views of the large majority of respondents who wanted to keep this ACoP and have instead decided to bin it,” he said.
    It is the code, which HSE wants to replace with guidance, that spells out employers’ risk assessment duties. “Replacing an ACoP with guidance is simply downgrading it and giving it ‘nice to have’ status,” he said.
    He is dismayed by the move, which he believes is a response to the government’s demand for deregulation, noting “no convincing reason has been given for ditching it. It just seems to be a case of ‘we have been told to get rid of as much regulation as we can and this is one of the low hanging ones we can pick off easily’.”
    Safety professionals’ organisation IOSH is also opposing HSE attempts to dump the code, and launched a petition in its defence on the government’s e-petitions website.

“As a result the level of regulation is being constantly eroded by a government that seems incapable of understanding that part of its role is to protect the weak from the strong, and that health and safety is not about nudging employers (and workers) in the right direction, but instead is about setting legal minimums that no-one can fall below,” commented Robertson.

“What we have now is a health and safety strategy based on an untested ideology with workers as the guinea pigs. Yet when it comes to making a difference there is no one correct answer. To change behaviour we need a mix of regulation, enforcement, guidance and support.”

Nudging alone, by contrast, doesn’t appear to work at all. When the House of Lords Science and Technology Committee looked at the impact of nudging, it found “precious little evidence” it changed anything.

A question you won’t hear the government considering is “what’s so wrong with red tape anyway?”

And that’s because its ideological obsession leaves no room for evidence, evidence that health and safety legislation doesn’t burden business, while its absence carries a high cost to business, workers and the public purse (Hazards 118).

Remove the red tape, and what you are left with is more bloody bandages.




Government attacks target the vulnerable

Gangmaster get-out  Government plans to weaken the Gangmasters Licensing Authority have been condemned by the TUC. TUC’s Ben Moxham said: “I can’t think of a more tragic example than when 23 Chinese cockle pickers working under a rogue gangmaster drowned in Morecambe Bay in 2004. The incident galvanised a broad coalition of unions, supermarkets, industry operators and politicians to call for the establishment of the Gangmasters Licensing Authority (GLA) in 2005.” The government is now proposing to weaken the GLA inspection system in the name of doing away with “red tape”, moving instead to a “risk-based” approach. “On the GLA’s own analysis, a move to a risk-based approach to application inspections could see as many as one in five non-compliant gangmasters being granted licenses,” said Moxham. He noted the government’s plans have been widely opposed, with critics including Justin King, the head of Sainsbury’s, and the Association of Labour Providers.

Agency attack  The government plans to repeal regulations that control how employment agencies operate and replace them with a system of self-regulation. A consultation by the Department for Business, Innovation and Skills (BIS) that closed on 11 April proposes scrapping the Employment Agencies Act and the existing regulations covering employment agencies. The Employment Agencies Standards Inspectorate (EASI), which is responsible for regulating agencies in the non-licensed sector, would be closed. Workers would have to take individual cases to employment tribunals - which from July 2013 will operate on a pay-per-go basis - as there would be no scope for government intervention.

Child labour
The UK government’s abolition of the Agricultural Wages Board (AWB) could lead to the re-emergence of child labour on British farms, the union representing agricultural workers has warned. Unite national officer for agriculture Julia Long said “the board’s abolition could herald poverty wages on the land; very suspect employment practices; and the real possibility of child labour being exploited shamelessly by ruthless bosses.” The move to axe AWB is included in the Enterprise and Regulatory Reform Act, passed in parliament in April.

A deadly trail of abuse

Unjust site  UCATT is calling for urgent action after its research discovered fewer than half of site deaths are followed by a prosecution. Its Freedom of Information request to the Health and Safety Executive (HSE) revealed that of the 332 fatalities involving construction workers between 2004/5 and 2008/9, just 154 (46 per cent) led to a prosecution. More recent figures were not requested as it typically takes between three and four years between the death of a worker and a case coming to court, the union said. UCATT general secretary Steve Murphy said: “It is bad enough that families have lost a loved one but the fact in the majority of cases no prosecution has ever been brought is shameful.”

Safety pays  A new French study has found the benefits of improved health and safety in the construction industry go beyond preventing deaths, injuries and ill-health. Researchers measured the financial impact of 101 preventive actions carried out in 27 firms of all sizes. These gave an overall return of 2.19 - for every £100 invested the prevention efforts yielded savings of £219.

Criminal voice  A “primary authority scheme” is giving major companies the right to call for a proposed safety prosecution to be halted. The scheme requires that companies have to be given prior warning by their designated enforcer ahead of an intended prosecution. The company can then request the matter to be referred to the Better Regulation Delivery Office (BRDO) for determination. Under the primary authority scheme, businesses can designate a particular local authority to cover its regulatory issues including workplace health and safety.

Nuclear option  At least 15 people working for the nuclear energy industry or its consultants have been seconded to government departments responsible for policy or regulation, the group NuclearSpin has discovered.  EDF Energy has seconded two staff to the Office for Nuclear Regulation (ONR) at the Health and Safety Executive (HSE). The engineering company Babcock, which describes itself as ‘the UK's largest specialist nuclear support services organisation’, has seconded two staff to the ONR. An HSE statement confirmed nuclear employees were seconded to the organisation.




Search Hazards

Thick and fast

The government just can’t stop asking “what’s wrong with Health and Safety Executive?” Hazards editor Rory O’Neill says HSE’S problem is patently obvious - ministers have tied its hands, slashed its budget and hijacked it.


Starved watchdog
Board stupid
Look who's on board
Unsightly growth
Legally dumb
Safety is not just nice

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Government targets the vulnerable
A deadly trail of abuse

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