Memorandum by A J P Dalton (HSE 06)
THE FAILURE
OF THE
HEALTH AND
SAFETY EXECUTIVE
(HSE) TO PROTECT
WORKERS' HEALTHA. My
background:
1. I have worked advising workers, occupational
accident and disease victims, employers (large and small), compensation
solicitors and others on workplace health and safety issues for
over 25 years. I have written widely on many of these issues.
In 1984 I was sued, and made bankrupt, for my
book Asbestos Killer Dust,. The horrific predictions I
made then have, unfortunately, come to be true. More recently,
my book, Safety Health and Environmental Hazards at the Workplace
(Cassell, 1998), which I recommend to the members of the committee
(well, I would wouldn't I), outlines a radical view of the HSE
(and health and safety generally) and it's failure to protect
workers' health.
2. I was one of the many health and safety
professionals who welcomed the 1974 Health and Safety at Work
Act, and especially the involvement of employees, via their trade
unions and the 1977 Safety Representative and Safety Committee
Regulations. Contrary to some opinions, I do not feel that the
Act has been the success that many claim and, in particular, the
Health and Safety Executive (HSE have failed to live up to working
people's expectations: that is to protect their health at the
workplace.
3. I have had to assist people with successful
Ombudsman complaints against the HSE, on lead poisoning and pesticide
poisoning. However, these Ombudsman complaints against the HSE
are the "tip of the iceberg", as many others have not
had the time or energy to complain about HSE inaction or "maladministration".
This is especially true of those who have lost their loved ones
and those who are very ill from a workplace disease. I myself
have taken several successful Freedom of Information Ombudsman
Complaints against the HSC/HSE (re the publication of HSC/HSE
committee documents and papers and stress enforcement action)
in recent years. In 25 years of workplace inspection, surveying
and campaigning I have never met, what I would call, a decent
HSE inspector. They are often frightened of their own shadow,
let alone the employer!
B. Some background to the failure of the HSE:
4. Whilst the reduction in crude deaths
at work is, of course, to be welcomed, it must be realised that
much—if not most—of this reduction has occurred due
to the closure, and contraction, of many of the traditionally
dangerous industries: coal mining, steel works, shipyards, foundries,
general engineering etc.
5. Yet, around five people are still killed
at work each week. HSE research has shown three to four of the
these deaths are preventable; mainly by management action. That
is, three to four of these deaths a week, are not true accidents.
If they can be prevented, they should be prevented!
6. The Labour Force Survey (LFS) indicates
that around one million people suffer a work-related injury each
year. In 1997-98 there were almost 30,000 major injuries to workers,
nearly 135,000 injuries leading to an absence of work for more
than three days and over 28,000 injuries to members of the public.
25,000 people still leave work each year as a result of workplace
injury.
7. The LFS suggests two million people suffer
from ill-health caused or aggravated by work and this results
in some 20 million lost working days.
8. Major health hazards on the early century—such
as noise, vibration, dusts (especially asbestos), RSI—are
still with us, whilst newly recognised hazards—such as stress,
upper limb disorders, backache and Multiple Chemical Sensitivity
(MCS)—are now recognised.
9. The above is hardly a success story for
the HSE.
10. An examination of the 19th century workplace
diseases (see my book), such as noise and vibration, show the
HSE has totally failed to control the hazards. As a result they
are now going to still be rampant in the 21st century, when they
should have been consigned to occupational history books. Take,
for example, the massive public health disaster: the dust asbestos.
11. Having recognised, in some detail, the
"evil" effects of asbestos dust in the 1898 Annual Report
of HM Factory Inspectorate to Parliament, the Factory Inspectorate,
and from 1974 the HSE, then failed continually to control asbestos
hazards. According to Professor Julian Peto, asbestos related
diseases (mainly cancer) may kill up to 10,000 people a year in
the UK by 2025. Already killing 3,500 a year, it kills more than
are killed on the roads each year in the UK! Professor Peto estimates
it may kill 1,000,000 a year in Europe alone by 2025. In my view,
the UK Factory Inspectorate/HSE bear a large responsibility for
these preventable deaths.
Briefly:
— In 1934 Sir Thomas Legge, the first
HM Medical Inspector of Factories, admitted that, "In the
light of present knowledge, it is impossible not to feel that
opportunities for the discovery and prevention (of asbestos-related
diseases) were badly missed."
— In 1976 a Parliamentary Ombudsman
report revealed massive HSE complacency about an epidemic of asbestos-related
disease at Cape's Hebden Bridge factory; many other such revelations
and an HSC enquiry followed.
— Most of the recommendations of the
1979 HSC Enquiry Report into Asbestos were never implemented by
the HSE.
— It took the 1982 documentary, Alice:
a fight for life, plus massive community and trade union action
on asbestos hazards (which followed) for most of the 1979 recommendations
to be implemented by the HSE.
— In June 1997 new Labour government
announced a proposed ban on the import and use of all asbestos;
not the HSE! Following the announcement of the proposed EU ban,
asbestos is to be banned in the UK (World Trade Organisation permitting)
in November 1999.
— There are still millions of tonnes
of asbestos in our homes, schools, hospitals, workplaces etc that,
if not removed safely, will produce another "asbestos epidemic"
in the 21st century.
— If the recent prosecution result,
a few hours "community service" (compare Eric Cantona,
the former Manchester United footballer) of the "Medley Brothers"—who
employed unprotected teenage children to remove asbestos (also
breaking every health and safety and environmental law in the
book)—is to become the norm then there is little hope of
stopping this epidemic. The HSE are responsible for making asbestos
removal safe. Given their record, it's a bit like putting the
fox in charge of the hen house! I accuse the HSE of gross negligence
in (not) preventing the continuing growth of asbestos hazards
during the past 100 years!
C. Some Current Problems with the HSE:
12. It is traditional, since the 1974 HSW
Act, to divide health and safety concerns into three, the so-called
tri-partite approach, areas:
A. Private and Public Industry—who
bear the primary responsibility under the 1974 Act.
B. Government—who are primarily responsible
for enforcement of legislation—the "level playing field"—and
setting standards.
C. The trade unions—who were to "monitor"
the actions of the above two on behalf of workers. But whose membership—and
hence power and authority (especially at the workplace)—has
fallen from two in three employees in 1979 to one in three today.
This leaves a large hole in the representation
of working people by the existing structures, as many:
— Are not in trade unions (and will
not be even after the recognition laws that exclude the very growth
area of the economy, those with under 21 employees; the Small
and Medium Sized Enterprises (SMEs).
— The HSE cannot cope with the many
contracts, part-time and casual employees that form an essential
part of the new economy.
— Homeworking is growing, and the HSE
have never offered any protection in this area.
13. A wider concern, is the tendency in
larger workplaces to combine safety, health and environmental
concerns together, for which the HSE is ill-equipped, trained
and funded.
Yet, local council Environmental Health Officers
(EHOs) have been enforcing safety, health and environmental (at
least in the 13,000 part B processes of the 1990 Environmental
Protection Act) standards at 1,210,000 workplaces for many years.
Indeed, they also enforce food hygiene standards and fire protection
in many premises.
EHOs in effect, they often provide the "one
stop shop" that many SMEs would like. However, their basic
training in h&s issues (and environmental prevention) is poor
and needs improving and updating.
14. The HSE have a problem in that 99 per
cent of the time of a typical HSE inspector is spent inspecting
and, essentially, advising industry on workplace hazards. Then,
very occasionally, s/he is required to prosecute the very employer
s/he has been an adviser to for many years.
This is a very real personal dilemma, that is
not recognised.
Secondly, and very importantly, the philosophy
of the HSE since the first four Factory Inspectors were appointed
in 1833, has been not to be a "workplace police person"
but to act, essentially, as an adviser to industry.
However, in recent years there has been more
pressure from society and the family, relatives and friends victims
of "workplace Manslaughter" (see, for example, Invisible
Crime—the true life story of a mother's fight against the
government's cover-up of workplace manslaughter, Ann Elvin,
1995) that has pressurised the HSE to see workplace crime, and
especially death, as important as crime outside of the workplace.
Why should being killed by a brick be less of
a crime inside the workplace than out?
Finally, there is the issue of extending the
rights of trade union safety representatives, and other employee
representatives (eg "roving safety representatives")
to have environmental rights (time off for environmental audits,
action and training etc.) as well as health and safety. Surveys
of safety representatives by the TUC, TGWU and Hazards
magazine have shown considerable safety rep action, interest and
involvment in the environment; even without any rights. John Prescott,
the Deputy Prime Minister said in 1998 that he was, "prepared
to look at it", with regard to extending these rights, is
the HSC/HSE looking at it?
D. Some Reforms of the HSC/HSE Required:
15. It is impossible to talk of reforming
the HSE, without mention of the Health and Safety Commission (HSC),
which is, in theory the top health and safety body—above
the HSE—in the UK. The HSC should set the major policy for
the HSE.
But, in practice, since 1974 the HSE tail has
wagged the HSC dog!
NOTE: Some of
the suggested reforms below may be the joint responsibility of
HSC/HSE.
16. The HSC should be reformed along the
following lines, not in order of priority:
— More representative of the working
community and concerns (ie more women, ethnic groups, disabled,
young, part-time/casual, non-union people, environmentalists);
— More independence from the government
and HSE and a research/campaign budget and staff;
— Holding HSC meetings in public (the
Environment Agency Board meetings will be open to the public from
October 1999);
— Producing its own critical annual
report of the HSE's performance, or lack of it;
— Considering how far the integration
of safety, health and environmental issues—and hence inspectors—should
go; using the local council EHO as a model;
— Considering how SMEs can be given
practical health and safety advice;
— Giving more powers of action, enforcement
and education to safety representatives and roving safety representatives.
17. The HSE should be reformed along the
following lines, not in order of priority:
— The requiring all employers to designate
a member of the Board/owner-partner (for SMEs) to be responsible
for health and safety;
— In the case of a workplace death,
serious injury or ill-health there should be an automatic consideration
by the HSE of a manslaughter/grevious bodily harm charge against
the employer and/or the senior director/managers responsible for
health and safety;
— To require an annual report on health
and safety (compare audited accounts) by the company that has
been audited independently;
— There should be a section in the
report for trade union safety representatives and/or employee
comments on the report;
— There should be a member of management
trained to an HSE-approved minimum in health and safety;
— There should be trade union safety
representatives allowed the appropriate time off, with cover for
work, for training, reading/research, workplace inspections, accident/incident
investigations etc;
— HSE Inspectors should prepare annual
reports on the actions/results of safety reps actions in various
workplace sectors;
— HSE Inspectors should carry out sample
audits of workplace organisations during the year and publish
the results;
— HSE Inspectors, in consultation with
employers, and workpeople, should provide simple, readable and
accurate guidance for the general health and safety requirements
for a range of common workplaces (eg the home, restaurants, offices,
hospitals, pubs, clubs, engineering work, food processing plants,
farms, recreation facilities, elderly persons homes, landfill
sites, sewerage works, chemical plants, foundries, quarries etc);
— HSE should act on employer/employee
complaints and publish the results of these complaints;
— HSE should encourage the development
and education of trade union safety representatives whose presence
in the workplace have been shown to reduce workplace injuries
by half. At the very least they should publish a free guide to
the regulations, code of practice and guidance notes;
— Trade union safety representatives
should be allowed to appeal to an Employment Appeal tribunal against
the non-issuing of an Improvement/Prohibition Notice by an HSE/EHO
Inspector in the same way that an employer can appeal against
their issuing (ie the true application of fairness, equality and
partnership at work);
— Trade union safety representatives
should be allowed to issue Provisional and Prohibition Improvement
Notices on the employer, along the line of those allowed in some
Australian states. Subject to appeal by the employer to an Employment
Tribunal (as with existing HSE Inspector Improvement/Prohibition
Notices) and confirmation by an HSE/EHO Inspector;
— HSE should encourage the development,
appointment and training of "roving safety representatives"
along the model of the Swedish model (as described in the 1997
HSE-funded study into the TGWU pilot "roving safety representatives"
project in UK agriculture). These would be especially appropriate
for: agriculture, construction and SMEs (where less than 21 people
work and TU Recognition will not be a legal right).
September 1999
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