Memorandum by the Trades Union Congress
(HSE 18)
1. The TUC welcomes this opportunity to
present our views on the work of the Health and Safety Executive.
We would like to see much greater interest among parliamentarians
in the issue of health and safety at work—we have accordingly
supported the work of the All-Party Group on Occupational Safety
and Health since its relaunch in 1996.
2. This memorandum, which has been drawn
up in consultation with the TUC's network of union health and
safety specialists, concentrates on operational aspects of the
work of HSE, rather than the various policy issues such as Regulation,
although a very brief summary of our views on that is set out
at the end of this memorandum. We have also summarised our response
to the Government's strategic appraisal of health and safety.
3. In general terms, the TUC strongly supports
the work that the HSE does, and we find it to be one of the best
examples of a Government body active in the field of working life,
in terms of its approach to involving trade unions and general
openness, its professionalism and its effectiveness. The comments
made below are made on the basis that they would add to its capability
in these areas. In addition, many of the points made below would
also apply to the local councils which have enforcement responsibilities
for health and safety in the service sector.
RESOURCES AND
CHARGING
4. Like any public body, the HSE is not
awash with money. Compared to the amounts spent each year by the
state on compensating the victims of workplace injury and ill-health
(over £600 million in Industrial Injuries Disablement Benefit
alone compared with the £250 million granted to the HSE),
the amount spent on prevention is rather limited. We argue in
our submission to the strategic appraisal that a relatively modest
increase in HSE resources would allow for some significant improvements
in the health and safety system. In that spirit, we have welcomed
the extra resources secured for the HSE by the current government
which makes a welcome change from the plans of the former administration
and have contributed to an increased profile for health and safety
and improved morale among the staff.
5. But the TUC believes that additional
resources would make a significant difference to the HSE's performance.
For example, £65 million extra would allow the HSE to provide
a comprehensive community occupational health service based in
GP surgeries, plugging the gap in British occupational health
provision caused by a private occupational health service in the
largest enterprises, and no service at all for small firms, the
self-employed etc. The HSE is also currently unable in general
terms to make grants to those engaged in ground-breaking health
and safety developments, along the lines of the Department of
Health's Section 64 grants to the not-for-profit sector. A discrete
budget for such work would stimulate much greater activity on
health and safety, and would allow the currently HSE-dominated
health and safety world to be more open to different activities
and ideas. Finally, the HSE itself would be able to use extra
resources to extend the current very useful "workplace contact
officers" whose activities, falling short of enforcement,
are of great value to small firms in providing advice and guidance.
6. We are more concerned, however, at the
level of resources available to local authority environmental
health officers to carry out their health and safety enforcement
responsibilities. At a time when the service sector is growing,
the number of (full-time equivalent) inspectors in the local authority
sector has declined by 10 per cent in the last year. We believe
that this is having a damaging effect on the number of inspections
in this vital area of the economy. The cause is mostly that local
authorities are shifting resources within environmental health
towards food safety, where there is more specific legislation
against which to inspect (rather than the goal-setting regulation
which unions and businesses find more appropriate to health and
safety). We believe that this trend needs to be reversed.
7. One crucial element of the HSE's resourcing,
which has allowed the Government to increase the budget, has been
the extension of charging for HSE services to include matters
relating to the safety cases used in offshore oil, gas transportation,
railways and sites covered by the COMAH Regulations. The HSE has,
of course, always charged for some services (eg publications)
and there is always a balance to be struck over how far these
charges act as a disincentive to good safety practice. But the
TUC has supported the current extensions to charging because of
the increased revenue they bring, and because there is a logic
to requiring enterprises conducting necessarily hazardous, but
nevertheless lucrative, activities to pay for their permit to
act. Where we have drawn the line (and received assurances from
Ministers) is over general inspection functions, which we believe
would be seriously undermined by charging. We have also supported
the review systems put in place by the HSC for these new charging
regimes.
8. The decision by Ministers to exempt heritage
railways from the charging regime, however, has reopened the policy
debate on charging, and there will be understandable attempts
especially by small COMAH sites to seek further exemptions. The
TUC opposed this exemption because there was no indication that
heritage railways were less hazardous than railways generally—but
we would have supported the provision of Government grants through
the Department of Culture, Media, Heritage and Sport to offset
the HSE charges. The TUC still believes that the charging policy
is a necessary evil, but we believe it should be reviewed not
just against its impact on health and safety, but also in the
light of any change to HSE finances.
9. In this context, the TUC would also like
to see further consideration of other methods of revenue generation
for the HSE:
— returning to HSE the legal costs
of successful prosecutions (currently going direct to the Exchequer);
— charges for other forms of licensing
(eg First Aid trainers' certificates, safety cases in road transport
if they are introduced); and
— charges which encourage better safety
performance, for example if an employer ignores the views of safety
reps (the Law Commission has already advocated punitive damages
where ignoring such advice leads to injury).
Finally, the TUC response to the Government's
strategic appraisal suggests extra funding for the HSE from a
levy on employer liability insurance, and possible improvements
to compensation arrangements (private and state) being brought
under HSE influence, possibly producing surpluses which could
be devoted to prevention.
ENFORCEMENT
10. There are several ways in which the
regulators can enforce health and safety laws, starting with the
notices served by HSE Inspectors (Improvement Notices require
that action be taken within a specified time to rectify a problem
and Prohibition Notices require immediate action to prevent injury
or illness). Where these Notices are breached (and they can also
be appealed to an Employment Tribunal), prosecution is likely,
and is also an option where an injury or incident has occured.
Victims and others (eg union safety reps), however, can only take
action by refusing to do something which would cause serious and
imminent danger, or by suing their employer after the event for
common law damages (which currently involve no punitive element).
The situation is slightly different in Scotland, where potential
victims can apply for injunctions where their employer is breaching
a health and safety law, unless that law is excluded from civil
liability (as the 1974 Act and key elements of the Management
Regs are).
11. Prosecutions take up inordinate amounts
of Inspectors' time, legal costs are not recovered by the HSE
(see above) and the penalties levied by the courts or by magistrates
are often nugatory. Coupled with the effective prohibition on
enforcement by anyone but Inspectors, the current system of enforcement
is woefully inadequate. We believe that there is little scope
to increase substantially the number of prosecutions taken by
Inspectors because their best efforts remain in prevention. But
we would certainly like to see the level of fines or other penalties
increased for those who are convicted of wrongdoing.
12. We welcome the steps currently being
taken by Ministers to increase fines and introduce a crime of
corporate manslaughter, but we believe more needs to be done.
The TUC would like:
— safety reps to have the same authority
as in Australia and Sweden to serve "provisional" notices
which would have the same impact as Inspectors' notices as long
as they were valid (and employers could call in Inspectors to
arbitrate);
— the removal of civil liability exclusions
from health and safety law (especially on the risk assessment
provisions of the Management Regs) and punitive damages added
to common law damages for flagrant breaches of health and safety
law; and
— legal costs recovered in prosecutions
to be recoverable by the HSE and all breaches of health and safety
law to be punishable by unlimited fines or imprisonment—both
of which would bring health and safety law into line with environmental
and food law. On the spot fines could also be considered.
13. One major area where the TUC believes
that the HSE has the power to enforce but does not use it is in
managing occupational road risk, where, once a vehicle is outside
the employer's premises, it is assumed that road traffic legislation
and the police as enforcers will take over from the Health and
Safety at Work Act and the HSE/local authorities. We appreciate
the need for a single enforcement regime covering behaviour on
the road, but we believe that management responsibility for road
transport cannot sensibly be said to end at the "factory
gate". Employers should be responsible for ensuring a safe
system of work among their drivers (whether they are driving buses,
trucks or cars) including ensuring driver competence, preventing
fatigue and so on, and we therefore submitted the suggestion to
the Transport Safety Review that the HSE should develop a system
of licensing any business which requires its employees to drive.
OCCUPATIONAL HEALTH
14. The HSE has in recent years put a great
deal of effort into dealing with occupational illness, including
the Health Risk Reviews of the early 1990s, the Good Health is
Good Business campaign launched in 1995 and the Self-reported
work-related illness (SWI) Survey, which provides the best available
data on occupational illness. A ten-year occupational health strategy
is currently being developed for launch next Spring. The TUC believes
that there are two major gaps in the British occupational health
system—the lack of an adequate rehabilitation system for
sufferers and the patchy access to occupational health advice
and support for employers and workers (especially acute in the
small firms sector). In both cases, changes in Government policy
are required (see below).
15. But the HSE does have some capacity
to intervene without a change in Government policy. Under the
Health and Safety at Work etc Act 1974, there is an Employment
Medical Advisory Service which has now shrunk to under 100 staff.
EMAS consists of occupational health doctors and nurses, currently
known as medical inspectors. They provide similar services to
HSE inspectors, but with a special emphasis on (and knowledge
of) occupational health. The TUC believes that this is a useful
but limited function, because of the size of the service. We believe
that by reducing its inspection function, EMAS could become an
effective lobbyist for the HSE's occupational health strategy
when regional health authorities develop their Health Improvement
Programmes, and when Primary Care Groups are determining their
purchasing strategies. This would allow the HSE to have an influence
on NHS provision of occupational health (crucial to small firms
who cannot sustain occupational health services themselves).
MODERNISING GOVERNMENT
16. The TUC believes that the HSE is already
at the forefront of Government departments in terms of the modernising
government agenda. In particular, we believe that the HSE is more
consultative and more open than most we deal with. This flows
partly from the tripartite nature of the Health and Safety Commission,
which necessitates the fullest consultation over the HSE's regulations.
Our experience that the HSE consults fully and appropriately at
every stage with employers and workers has been borne out by the
Better Regulation Task Force which has commended the HSE model
of pre-consultation on proposed regulation, formal public consultation
on draft regulation and continuing review with stakeholders (including
the network of Industry Advisory Committees which permit unions
and employers to meet and develop a partnership over safety in
their sector).
17. In terms of openness, the TUC has never
had a request for information refused or ducked, and there have
been very few complaints to the ombudsman about HSE (those that
there have been have primarily resulted from requests for vast
amounts of information, or for information HSE did not know it
had). It is noticeable that the current proposals for freedom
of information would actually make HSE more secretive than at
present, and that the HSC/E submission on the subject proposed
not to take advantage of that. However, the TUC is aware of an
inconsistency in the supply of information on enforcement action
(not just prosecutions, but improvement and prohibition notices
too), where members of HSC Industry Advisory Committees are regularly
informed about these, but unions without an Advisory Committee
covering their sector are less able to obtain such information.
This clearly does need to be addressed and we will be raising
it with the HSE.
18. The HSE faces two or three particular
challenges in terms of better government issues—devolution
and equality issues (especially gender sensitivity and the Lawrence
report). In terms of devolution, health and safety is of course
a reserved matter, but the associated disciplines of environment
and public health have been devolved, and the general tenor of
devolution will undoubtedly affect health and safety. The HSE
has just begun to start addressing the devolution agenda, but
clearly some change will be needed to deal with the Scottish Parliament
and the Welsh Assembly, and the structures of business and unions
in Scotland and Wales, as well as dealing with echoes of that
political process in English regions.
19. On equality issues, the TUC is particularly
critical of the gender-neutral approach which the HSE has taken,
and we have argued strongly for a "gender-sensitive"
approach instead, which recognises that because women are concentrated
in certain occupations, they face gender-specific hazards that
need to be addressed in a gender-specific way. This would include
a commitment to produce a gender audit of its work and regulations.
The HSE has not, to our knowledge, yet addressed the issues contained
in the Lawrence report, again adopting a neutral stand rather
than a sensitive one. Failures to recruit to inspector grades
among ethnic minorities, or to monitor the impact of regulations
and inspections by race, suggest that a culture change will be
needed in the organisation.
INSPECTOR COMPETENCES
20. Our final concern about the operation
of HSE again relates to the inspectorates. Unions have begun expressing
concerns that the HSE's Inspectors (and also those working for
local authorities) have not received sufficient training to deal
with key issues such as the prevention of psycho-social disorders
(eg stress), or the involvement of workers (especially in terms
of relations with safety reps). The TUC and our unions are generally
very supportive of inspectors, which makes our concern in these
areas particularly acute. In each case, better training is needed,
but recruitment could also play a key role—the more inspectors
with a background in organisational psychology, the more likely
they will be able to advise employers about and enforce whatever
regulations are developed to deal with workplace stress. In terms
of worker participation, the need for better training should be
an adequate solution—a special focus on safety reps (perhaps
assisted by a change in Government policy on their powers and
scope) in inspector training would be invaluable.
POLICY ISSUES
AND THE
STRATEGIC APPRAISAL
OF HEALTH
AND SAFETY
21. Beyond the mostly operational matters
outlined above, the TUC would like to see policy changes in a
number of health and safety issues—some of them already
being addressed by the HSE. In particular, our response to the
Government's strategic appraisal of health and safety outlines
seven key areas where radical progress needs to be made:
— developing a national safety audit,
including challenging aspirational targets, based on auditable
standards of preventative action required to be included in company
annual reports, and Audit Commission-style reports by the HSE's
inspectors into best practice;
— creating stronger financial incentives
through a health and safety dividend (partly by implementing the
points made above about HSE resources) to enable the HSE to develop
more effective, joined-up financial incentives for better safety
standards and rehabilitation, including tax breaks and intervention
in the employers liability insurance market;
— promoting social partnership by extending
the benefits of safety reps (who cut injury rates by over 50 per
cent) to small firms without internal management structures, and
extending their role where they do exist so that they develop
a positive partnership with employers over the management of health
and safety; and producing a community occupational health service,
drawing on existing provision and plugging the gaps;
— establishing a national back to work
plan to ensure that everyone injured or made ill at work can access
rehabilitation services on the basis of a mandatory rehabilitation
plan for every workplace as part of the already mandatory health
and safety policy;
— creating health and safety champions
among Ministers (responsible for ensuring that every Government
Department addresses health and safety in employment, procurement
and contracting), in the Commission itself, to proselytise for
health and safety and raise its public profile; and in workplaces,
from the Board of Directors to safety reps; and
— improving the impact of penalties
on the health and safety system (largely as described above).
22. Other areas where we would like to see
progress are in the regulation of asthma, occupational road risk,
stress (including working time) and violence, the investigation
of accidents and incidents, and the management of asbestos in
public buildings.
September 1999
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