House of Commons - Environment, Transport and Regional Affairs

Select Committee on Environment, Transport and Regional Affairs Fourth Report

PREVENTION AND INVESTIGATION WORK

17. Given that the responsibility for health and safety rests with employers, a major part of the HSE's work is informing and advising them on health and safety matters, through guidance, advice on legislation and consultation. More direct contact with individual employers comes through the work of the HSE's fieldforce of inspectors. Their work involves proactive inspections of workplaces and investigations of reported accidents and complaints.

Inspection work

18. The aim of inspections is to ensure that workplaces are compliant with the Health and Safety at Work Act and to thereby prevent accidents or long term health problems. During such inspections, inspectors may go beyond giving advice, and be involved in 'enforcement' work, where they issue firms with prohibition or improvement notices.[32] The HSE told us that this 'proactive inspection' was their largest programme "forming about half of all regulatory contacts [with employers] a year".[33]

19. The HSE operates an 'Inspection Rating Scheme' which determines which premises are to be selected for inspection. This scheme rates workplaces based on the degree of 'risk' they present.[34] The selection process is also influenced by the HSE's priorities for a particular year.[35] The HSE told us that all those premises falling into the highest risk category are inspected and that this would account for 10 per cent of workplaces in 1999-2000. Lower risk premises are very rarely inspected, although the HSE claims that it aims to contact, if not inspect, these at least once in every 6 years.[36]

20. The HSE shares enforcement of the Act with local authorities which are responsible, through the work of Environmental Health Officers, for enforcing the Act in 1.3 million 'lower risk' premises. These include shops, offices, restaurants, residential care homes and entertainment facilities.

Investigation work

21. Reactive investigations take place in response to a reported injury or death and comprise about a quarter of all regulatory contact with employers.[37] The aim of such investigations is to establish why an incident occurred, put in place improvements, ensure similar accidents do not occur in other workplaces and, where appropriate, to prosecute the employer.

22. The HSE investigates all fatalities which are reported to it,[38] but only 6 per cent of major accidents.[39] In reality the percentage is much lower since only a third of reportable injuries are notified by employers to the HSE. While the HSE recognises this "substantial under-reporting of non-fatal injuries," it claimed that the situation has improved, with recent surveys showing that the proportion of reported non-fatal injuries has risen to 47 per cent, albeit with significant variations between sectors.[40] We recommend that the HSE brings forward proposals aimed at increasing the reporting of all injuries in the workplace.

23. The balance between preventative and reactive or investigation work programmes and, in particular, the need to improve investigation rates of reported injuries, became key issues for our Inquiry.

Balance

24. There was considerable concern among witnesses that the HSE's record in responding to reported injuries—and in prosecuting—was poor. However, while there was consensus about this, there was at the same time great uncertainty about whether the emphasis of HSE activity should be changed. We received a range of views.

25. A number of witnesses believed that the HSE's current focus on prevention may be wrong. RoSPA (the Royal Society for the Protection of Accidents), for example, argued that the HSE's advisory role may have been given too much prominence in recent years and it told us that "there has inevitably been the suspicion that more emphasis is now being placed on the giving of advice and guidance by inspectors rather than the use of enforcement procedures".[41] This was also the main thrust of the evidence submitted by the Centre for Corporate Accountability.

26. However, other witnesses believed that the HSE was right to focus on preventative work. The TUC noted that "prosecutions take up inordinate amounts of Inspectors' time" and went on to say that "there is little scope to increase substantially the number of prosecutions taken by Inspectors because their best efforts lie in prevention".[42] The London Hazards Centre also strongly believed that the emphasis should be on the preventative principle. It argued that the "current practice of responding to worker injury must be eradicated".[43] The DETR took this argument further, claiming that the preventative or advisory role of the HSE had previously not been accorded enough emphasis. It stated that the "policing role, combined with resource constraints, has arguably inhibited the development of a more customer-friendly and responsive aspect to the work of HSE".[44] The Minister for the Environment also made the Department's position clear in oral evidence telling us that "prevention is still the real thrust of the policy".[45]

27. This also remains the HSE's stance, although it is planning a limited increase in the proportion of reported injuries it will investigate. The Director General of the HSE told us that the target was to increase this by about three per cent between 1999-00 and 2001-02.[46] The HSE claims that to aim for a higher proportion would compromise its other work:

"Any major increase beyond that [increase] would seriously reduce the number of preventive inspections and detract from the primary objective of ensuring that risks are properly controlled and that incidents do not occur".[47]

28. There is little conclusive evidence to support a major re-orientation of the HSE's work. Clearly any shift in the balance would have adverse consequences, unless additional resources were forthcoming. In particular, a reduction in advisory or preventative work could be counter-productive in that it might lead to some diminution in health and safety standards. That said, there are strong calls for increases in prosecutions and investigations, which the HSE is at least partially responding to.

29. We agree that the HSE's focus should remain largely preventative. However, we are disappointed by the low levels of investigation and prosecution that are undertaken by the HSE. There is an urgent need to increase rates on both counts. We therefore support the proposed target of a three per cent increase in investigation of reported injuries over the next three years. However, this target must be taken seriously: it should not be viewed as merely 'aspirational'. If resources are not currently available to allow the HSE to make this improvement, they must be provided.

Investigations and prosecutions policy

30. We also received views on specific aspects of the HSE's approach to investigations and prosecutions.

POLICY ON INVESTIGATIONS

31. Given the very low proportion of reported injuries investigated by the HSE, we were interested in how it determines which accidents deserve to be investigated. The Director General of the HSE told us that a decision to investigate was based on a number of criteria relating to :

the extent of the breach of the law;

the severity of the harm done;

the company's track record;

whether an investigation would produce lessons that could be applied elsewhere or would be a useful deterrent;

the level of public concern; and

where appropriate, the likelihood of a successful prosecution.[48]

This was expanded upon in supplementary evidence provided by the HSE.[49]

32. The HSE made it clear that it was not its intention to investigate every accident, primarily due to "diminishing returns"[50] and because there were other, perhaps more effective, ways of getting the message across.[51] However, other witnesses did not agree with this policy. The Centre for Corporate Accountability argued that injuries or deaths should be treated with the same urgency and seriousness as other crimes and should not be afforded greater leniency simply because they occurred in a workplace.[52] Or as Mr Dalton, a health and safety professional and author of a number of books on the subject, put it, "why should being killed by a brick be less of a crime inside the workplace than out?"[53]

33. Witnesses pointed out that public concern about the level of investigations of injuries was increasing. Partly in response to this, the HSE has decided to look again at a large sample of accidents which were reported but not selected for investigation. The purpose of the exercise, the HSE told us, was to establish whether the existing investigation criteria had been properly applied and the extent of non-investigation in circumstances when the Commission's and Executive's policies would require investigation to take place. The results of the review are included in the HSE's supplementary evidence.[54]

34. We welcome the HSE's review of investigation criteria as we are concerned that there are potentially many injuries which it should have investigated. We are pleased that the HSE intends to re-open those cases where the original decision not to investigate was judged to be wrong.

35. However, we continue to have some concerns about how the criteria which determine which injuries will be investigated, are applied by HSE inspectors. Decisions in the past appear to have been unduly dictated by availability of resources. While the HSE needs to operate within its resource limitations, we believe that it should develop more detailed guidance for inspectors. In particular, more thought should be given to a) how to 'weight' the criteria, since some should surely have more influence than others and b) whether some categories of very serious injuries should automatically trigger an investigation in the same way that fatalities do. Such a system would mean that decisions on whether to investigate would be more rigorously based and more transparent which would ultimately lead to a greater consistency in application between inspectors. We urge the HSE to use its review to address these issues.

36. We are also concerned about those cases where the HSE fails to investigate an injury and an individual is subsequently successful in bringing a civil case against an employer. We recommend that the HSE provide a list of such cases in their annual report, identifying the lessons learnt and the action taken, to ensure that in the future such cases will be investigated. We recommend that, unless there is evidence that the HSE is responding to this concern, the Government consider taking action against the HSE.

POLICY ON PROSECUTIONS

37. Concerns were also voiced in relation to a number of aspects of the HSE's policy on prosecuting employers. These focussed on the low levels of companies prosecuted; the approach to the prosecution process; and the final destination of revenues generated by successful prosecutions (which is dealt with at paragraph 99).

38. We received evidence to show that prosecutions are brought in only 10 per cent of major injury cases and 20 per cent of cases where a death has occurred.[55] In relation to fatalities, the Centre for Corporate Accountability compared the number of companies prosecuted (five manslaugher prosecutions) to the numbers killed at work (25,000) since 1965 and commented that this is "an infinitesimal follow-through".[56] The prosecution rate was also criticised by the London Hazards Centre[57] and Mr Dalton who described the HSE's record in regard to prosecutions as "dismally inadequate".[58]

39. However, increasing the number of companies prosecuted for health and safety offences will not be easy. Bringing a prosecution is a time consuming activity and it is, according to the HSE, "becoming increasingly difficult to win cases".[59] Some witnesses questioned whether in fact this represented an efficient use of resources or inspectors' time. For example, Mr Alesbury of the CBI said: "I am aware that taking someone to court does involve them in a great deal of time and effort, and with their limited resources that will detract from other activities to promote and improve health and safety".[60] Instead, one proposal we received was that the HSE should consider using lawyers, rather than HSE inspectors, to prosecute cases in magistrates courts.[61] We considered this proposition, but do not believe that it would be in the public interest to replace inspectors with lawyers to prosecute cases in the lower courts, primarily due to the significant resource implications. Instead, we welcome the HSE proposals to have fewer, better qualified specialist prosecuting inspectors in the lower courts.[62]

40. However, in addition, we believe that there may be some merit in enhancing the legal support currently available to HSE inspectors when prosecuting cases. We therefore recommend that the HSE provide better access for inspectors to legal expertise, whether this be in-house or external, to assist in the preparation of cases for magistrates courts. This may increase the chances of a successful prosecution and should allow inspectors to spend more time in the field.

41. Another aspect relevant to this discussion, is the success rate in prosecutions. Clearly there is little point in urging the HSE to prosecute more companies if these prosecutions fail. The Director General told us that the HSE prosecutes in cases where they think there is at least a 50 per cent chance of success.[63] In 1998-99, it secured successful convictions in 83 per cent of the cases it prosecuted.[64] Overall we accept that this is a strong performance and the Director General told us the HSE's record compared well with success rates in criminal courts.[65] However, the record for defended cases, ie where the defendant pleads not guilty, is much poorer, with the HSE winning only 38 per cent of such cases.[66] The Director General told us that this was because cases were being defended by "more competent lawyers" due to an increased stigma attached to health and safety offences.[67] However since the HSE only proceeds in strong cases, we feel this is a very poor rate and expect to see an increase.