Select Committee on Environment, Transport and Regional Affairs Memoranda

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.


  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.


  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.


  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).


  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.


  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.


  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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