Memorandum from the Health and Safety
Executive
DUTY OF CARE
CONTENTS
Introduction
Role and Organisation of HSC and HSE
Health and Safety Legislation
HSE Policy and Guidance on Work Related Stress
— The Management Standards
Workplace Bullying
Work Related Violence
— HSE Definition of Work Related Violence
HSE and MoD
— Health and Safety Legislation and
its Application to MoD
— HSE's Role in the Deepcut Barracks
Investigations
— Improved working arrangements between
HSE and the Police
HSE Action following publication of the Surrey
police Final Report
Annex Examples of HSE interventions in recruit
training incidents
INTRODUCTION
1. The Health & Safety At Work etc Act
1974 applies to the MoD and HSE inspects MoD activities. An account
is given below of the scope of health and safety law relevant
to MoD's "duty of care" to recruits, the growth and
scope of HSE's concern with issues such as stress and violence
at work and the nature of HSE's activities and interaction with
MoD. This interaction is guided by the Health and Safety Commission
strategy "A Strategy for Workplace Health and Safety in
Great Britain to 2010 and beyond". Occupational health (including
stress) is a key element in this stategy. Though HSE was not involved
in the investigation of the deaths of the four soldiers at Deepcut
barracks, the Surrey Police Final Report does raise concerns about
the Army's management of work-related stress that HSE does have
an operational interest in.
Role and Organisation of HSC and HSE
2. The modern system of health and safety
regulation in the UK was inaugurated by the Health & Safety
at Work etc Act 1974 (HSWA). This established the Health and Safety
Commission (HSC) and the Health and Safety Executive (HSE) as
two separate non-Departmental Public Bodies accountable to the
Secretary of State. It also confirmed a role for LAs in health
and safety enforcement.
3. HSC has overall responsibility for policy
on health and safety, and, uniquely among other government regulators,
advises Ministers on relevant standards and regulations. It also
conducts research and provides information and advice. The Chair
and members of the Commission are appointed by the Secretary of
State for Work and Pensions.
4. HSE advises and assists HSC and has a
statutory responsibility to make adequate arrangements for the
enforcement of the Act and other relevant statutory provisions
in Great Britain. The Act sets out the corporate governance regime
for the HSE. Broadly speaking, HSC provides non-executive oversight
of HSE. HSE implements its share of the HSC work plan, itself
approved by Ministers, and exercises a number of functions delegated
to it by HSC.
HEALTH AND
SAFETY LEGISLATION
Health and Safety at Work etc. Act 1974 (HSWA)
5. The Health and Safety at Work etc. Act
1974 (HSWA) sets goals and imposes duties on employers, self-employed
persons, employees, occupiers of buildings as well as suppliers
of work equipment and services. The duties are expressed in general
terms, so that they apply to all types of work activity and situation.
The principles of safety responsibility and safe working are expressed
in the general duties sections (primarily Sections 2, 3, 4, 6
and 7). They are comprehensive and designed to encourage employers
and employees to take a wide ranging view of their roles and responsibilities.
In some areas the general duties are supplemented by more detailed
requirements laid down in regulations made under the Act.
6. Section 2 of the HSWA imposes a duty
on employers to ensure, so far as is reasonably practicable, the
health, safety and welfare at work of their employees. This applies
fundementally to matters which are forseeable and within the employer's
control. The general duty is extended to include the provision
and maintenance of plants and systems of work; risks to health;
provision of information, instruction and training; the place
of work and working environment; etc. As recruits to the army,
and other services, are classed as employees, it is this section
that will be most relevant when considering the generality of
the MoD's duty of care under health and safety legislation.
7. A number of the duties imposed by the
HSWA and related legislation are absolute. Others are qualified
by the words "so far as is reasonably practicable".
This means that the degree of risk in a particular activity or
environment must be balanced against the time, the trouble, cost
and physical difficulty of taking measures to avoid the risk.
8. It is the view of the HSC and HSE that
health, in terms of the Health and Safety at Work etc. Act, includes
mental as well as physical health. On this basis, the HSWA is
considered to apply to issues such as work-related stress. It
also applies to risks arising from violence at work.
9. By virtue of section 48 (1), HSWA and
regulations made under the Act bind the Crown, including MoD.
The only exceptions are those sections dealing with criminal enforcement,
which do not apply ("Crown immunity"). Instead, alternative
administrative proceedures exist for Crown enforcement, including
issue of Crown Notices and Crown Censures, as described in Cabinet
Office Personnel Information Note PIN 45. The MoD, because of
the almost unique nature of some of its activities, also enjoys
some further exemptions and disapplications under specific sets
of regulations.
Management of Health and Safety at Work Regulations
1999
10. These regulations (known as the "Management
Regulations") replaced an earlier set made in 1992. Originally
they were part of a package of legislation made primarily to implement
many of the provisions of the Framework Directive 89/391. They
also implement, amongst others, the Young People at Work Directive
94/33. (Before the 1999 Management Regulations were made, The
Young People at Work Directive was implemented by the Health and
Safety (Young Persons) Regulations 1997)
11. The Management Regulations place a duty
on every employer to make a suitable and sufficient assessment
of the risks to the health and safety of his employees to which
they are exposed to whilst they are at work (the "risk assessment").
The reference here to health includes mental health, and so the
general duty for risk assessment includes a requirement for a
risk assessment where stress is identified as a significant health
hazard. The same would apply where work related violence is an
issue. The regulations also set out the principles of prevention
to be applied (in accordance with a Schedule to the regulations).
Duties include requirements on employers to make and give effect
to appropriate health and safety arrangements, provide health
surveillance, health and safety assistance, information for employees,
take account of employees' capabilities and provide training.
12. Where it is forseeable that a group
of employees may, for particular reasons, be considered to be
particularly vulnerable, then there will be an increased onus
on their employer to assess relevant risks to that group.
13. Regulation 19 specifically deals with
the protection of young persons (aged 16 or 17), requiring that
every employer ensures that young persons employed by him are
protected at work from any risks to their health or safety which
are a consequence of their lack of experience, absence of awareness
of existing or potential risks or the fact that young persons
have not yet fully matured. Regulation 19 goes on to set out types
of work that cannot be carried out by a young person (other than
that where it is necessary for the purposes of training, where
they are appropriately supervised or where the risk has been reduced).
The first of these areas is work which is beyond the physical
or psychological capacity of the young person. Therefore any risk
assessment carried out under the management regulations would
have to take account of the specific requirements of Regulation
19, if the work activity was to be carried out by a young person.
MoD does not have any exemption from these regulations and is
therefore fully bound by the requirements.
14. General HSE guidance on young persons
at work can be found in HSG 165 "Young Persons at Work—a
guide for employers". This sets out guidance on how employers
can comply with the requirements of the Young Workers Directive,
as implemented by the Management of Health and Safety at Work
Regulations 1999.
Provision and Use of Work Equipment Regulations
1998
15. The Provision and Use of Work Equipment
Regulations 1998 (PUWER), as amended, deal with machinery safety.
The regulations contain requirements covering the suitability
of work equipment; its maintenance and inspection; information
and instructions, training; etc. The definition of work equipment
would include items such as service issue weapons
Reporting of Injuries, Diseases and Dangerous
Occurrences Regulations 1995
16. The Reporting of Injuries, Diseases
and Dangerous Occurrences Regulations 1995 (RIDDOR) require employers
to report accidents at work to any employee that result in death,
major injury or incapacity for normal work for three or more days.
Accidents are defined as including any act of non-consensual physical
violence done to a person at work. Certain defined types of disease
and dangerous occurrences are also reportable. Absence resulting
from work related stress is not a reportable disease. Acts of
suicide, other than on a relevant transport system, are also non-reportable.
17. However, under Regulation 10(3), the
reporting requirements for accidents, deaths and diseases do not
apply to members of the armed forces on duty. HSE understands
that members of the armed forces are considered by MoD to be on
duty at all times, except when, from a practical point of view,
they are stood down eg when on leave.
Enforcement
18. HSE's decisions on enforcing health
and safety legislation are taken in accordance with the Code for
Crown Prosecutors and HSC's Enforcement Policy Statement, set
by HSC after full consultation with stakeholders. Under the Policy,
HSE will take enforcement action proportionate to the risk and
targets its contacts on the most serious risks or where hazards
are least well controlled. In order to enforce, there needs to
be clear evidence of a breach of health and safety law and a demonstrable,
forseeable risk to the health and safety of employees or members
of the public. The same criteria are applied for decisions on
Crown enforcement.
19. The police would normally take the lead
in situations where, following a death, evidence indicates that
a serious criminal offence, other than a health and safety offence,
may have been committed eg manslaughter. A protocol has been agreed
between HSE, the Association of Chief Police Officers (ACPO),
British Transport Police, the Local Governmernt Association and
the Crown Prosecution Service on the principles of effective liaison
between the parties in relation to work-related deaths in England
and Wales.
HSE POLICY AND
GUIDANCE ON
WORK-RELATED
STRESS
General
20. Work-related stress (WRS) is the second
largest cause of occupational ill health in the UK. There is a
clear need to take steps to tackle work-related stress in order
to reduce the incidence of sickness absence. That is why the Health
and Safety Commission made stress one of its priority programmes
in 2001.
21. Tackling work related stress is a difficult
issue. The issue has been emerging as one of concern and the HSE
has responded. Over the past 10 years, it has carried out much
research and has been developing guidance and advice.
22. Following a public discussion exercise
during 1999, the HSC concluded that reducing stress at work depends
on changing business culture. As each business is unique, solutions
that work well for some organisations may not work for others,
therefore a single approach would be hard to define.
23. The current guidance "Tackling
work-related stress—A managers guide to improving and maintaining
employee health and well-being" (HSG 218) was published
in 2001 and introduces HSE's agreed definition of work-related
stress:
"The adverse reaction a person has
to excessive pressure or other types of demand placed upon them."
24. This guidance advocates a five step
approach to assessing the risk factors for Work-related stress.
It introduces seven broad categories of risk factors for work-related
stress: culture, demands, control, support, relationships, role
and change.
THE MANAGEMENT
STANDARDS
25. Following publication of the 1999 discussion
document, the HSC decided that a firmer evidence base was needed
before recommending either Regulations or an Approved Code of
Practice on work-related stress and set out a programme of work
for tackling the subject. One element of the programme was to
develop clear agreed standards of good management practice to
tackle work-related stress. Draft management standards, which
will act as a yardstick for measuring how well an organisation
is tackling stress, were piloted by 25 organisations between Spring
and Autumn 2003. The pilot process is now being evaluated, and
the management standards will be revised and developed for further
public consultation in Spring 2004. Depending on the outcomes
of this exercise and HSC's agreement, HSE aims to publish the
finalised Standards in late 2004.
26. The standards will focus on improving
the health and well being of the workforce as a whole rather than
tackling cases of stress on an individual basis. They will also
be geared towards encouraging prevention through good management
and employee engagement.
27. Further guidance is now being developed
to accompany the standards. In the meantime employers are encouraged
to follow HSE's existing guidance "Tackling work-related
stress—A manager's guide" to help them through
the risk assessment process and to use its new guidance, Real
Solutions, Real People, to prompt the development of
locally applicable solutions. If employers work with these guidance
documents, they will be in a good position to meet the Standards
when introduced.
ENFORCEMENT
28. HSE contact with employers on stress
was primarily reactive until 2002. Since April 2002, HSE inspectors
have carried out proactive inspection, in line with the guidance
on work-related stress referred to above, targetting larger employers
where stress is recognised as a risk eg health and social services.
29. Work-related stress within MoD was not
identified as a particular priority for HSE. Our records (dating
from 1995) show that there have been a number of contacts between
MoD and HSE where stress has been raised. Some of these were reactive,
dealing with complaints about stress and working time. Some were
proactive, where the management of stress was raised at inspections.
And at others, particularly more recently, stress has been raised
at MoD seminars as one of HSE's priority programs. None of these
contacts dealt with Deepcut Barracks and none related to recruit
training. One contact did refer to stress and bullying at a naval
base but this did not involve recruit training.
30. HSE's approach is to promote awareness
of the need to undertake risk assessment along the lines laid
out in the recent guidance. HSE recognises that stress is an issue
which is difficult to tackle and encourages the development of
an employer-employee partnership approach. HSE's approach is focused
on encouraging employers to identify risks associated with stress
across whole workforces. The objective is to identify the workplace
conditions that might be contributing to work related stress and
then to agree and put in place management interventions to prevent
or reduce exposure to these risks.
31. HSE does not seek to prescribe a process
or mechanism for risk assessment or assess the effectiveness of
specific work solutions. However, it does emphasise the importance
of employee engagement and consultation in the development and
evaluation of such solutions.
32. An organisation that undertook a risk
assessment based on the approach in HSE's current guidance (HSG218
Tackling work-related stress) and identified major problems/issues,
would be unlikely to be subject to enforcement action by HSE provided
it could demonstrate it was taking steps to address those problems/issues.
WORKPLACE BULLYING
33. Bullying is primarily an employment
relations issue, to be addressed as part of an employee relations
policy—eg disciplinary and grievance procedures. The Department
of Trade and Industry (DTI) leads on employment relations policy,
supported by the Advisory Concilliation and Arbitration Service
(ACAS). Certain behaviours reported as bullying in the academic
literature are similar to those reported as stressors (causes
of stress). Bullying can present a risk to employees' mental health
if it is extreme or goes on for some time. HSE's Management Standards
seek to encourage organisations to undertake a risk assessment
for these stressors and put in place interventions to prevent
or reduce their impact. There is therefore an interest in bullying
as an aspect of this work where stress interventions may mediate
the impact of bullying behaviours across an organisation.
34. The Department of Trade and Industry
(DTI) have recently launched a joint initiative with the AMICUS-MSF
Union to tackle bullying in the workplace under the Partnership
Fund. This will seek to develop benchmarking tools and training
programmes for investigators and counsellors. Guidance on how
to tackle workplace bullying is also published by ACAS who are
able to offer advice on employment relations issues. Where an
individual reports bullying their first point of recourse is generally
to internal grievance and disciplinary procedures or the raft
of anti-discrimination and harrassment legislation sponsored by
DTI.
WORK-RELATED
VIOLENCE
HSE definition of work-related violence (WRV)
35. The HSE defines WRV as: "any incident
in which a person is abused, threatened, or assaulted in circumstances
relating to their work". This covers physical assaults, threats
and verbal abuse either by members of the public or fellow employees.
36. It should be noted that in the context
of this Inquiry, HSE's primary interest in WRV relates to violence
to staff where non-employees are the agressors (eg. members of
the public, patients, pupils, etc). Where violence occurs between
staff HSE will only investigate if this is directly associated
with work.
37. HSE encourages employers to manage WRV
in the same way as any health and safety issue. To help employers
do this HSE has published free general guidance to help them tackle
WRV, in accordance with their duties under the HSWA. This guidance
leaflet "Violence at Work—A Guide for Employers"
(INDG69(rev)) advocates a risk assessment approach on how to tackle
risk to employees from the public.
38. HSC is committed to tackling the problem
of WRV. In March 2000 the Commission embarked on a three year
programme to help employers tackle WRV, with the aim of reducing
the number of incidents of violence at work by the end of 2003.
HSE is now building on the momentum of the Commission's 2000-03
programme of work to demonstrate its continued commitment to
working with key stakeholders and partners to reduce workplace
violence still further.
ENFORCEMENT
39. HSE looks at the risk of violence to
employees from members of the public in inspection and enforcement
work. Violence has been a key issue addressed by inspectors, especially
at interventions covering NHS Trusts and nursing homes, local
authority social services departments, mainstream and special
needs educational establishments, the Prison Service and Police
Service, where HSE has identified violence as a significant hazard.
HSE may also investigate and take action when particular incidents
come to our attention, even when not reportable under RIDDOR.
HSE AND THE
MOD
Health and Safety Legislation and its Application
to the Armed Services
40. HSE has a well-established working relationship
with the MoD. A formal inspection agreement, the MoD HSE General
Agreement, was first signed in 1981. This agreement set out a
protocol for HSE interventions. The agreement was replaced in
1996, and reviewed in 1998 and 2000. The current General Agreement
allows HSE access to all of MoD's activities within Great Britain,
subject to certain protocols on arranging visits and sensitive
activities. The Agreement also acknowledges the nature of MoD's
activities and states that HSE will consider the requirements
of the defence imperative as well as cost when making judgements
about reasonable practicability.
41. In recent years, the HSE's contact with
MoD has primarily been reactive, largely in response to serious
accidents. Whilst work-related accidents and ill heath affecting
service personnel on duty are not formally reportable to HSE,
(RIDDOR reg 10 (3)) MoD has undertaken to inform the HSE of any
serious, work-related accidents involving its personnel. A significant
proportion of those investigated arise out of Army training activities.
Some examples of HSE interventions concerning MoD recruit training
accidents are given in the Annex. HSE does not receive many complaints
from service personnel; just one of these has related to bullying
but not in relation to recruit training.
HSE'S ROLE
IN THE
DEEPCUT BARRACKS
INVESTIGATIONS
42. The deaths of the four soldiers at Deepcut
Barracks were not reportable to HSE under the RIDDOR regulations
and, as far as we can establish, were not notified to HSE. HSE
did not get involved in the investigations, except when Surrey
Police contacted HSE in 2002. Surrey Police asked about aspects
of HSE's experience in investigating MoD weapons accidents. The
police were not looking to involve HSE in their investigation
of the Deepcut deaths and it was agreed that they would contact
HSE again if they wanted further input from HSE but, in the event,
there was no further contact on this issue. HSE was not involved
in the inquests.
IMPROVED WORKING
ARRANGEMENTS BETWEEN
HSE AND THE
POLICE
43. The current Work-Related Death protocol,
referred to in para 19 above, is a revision and expansion of an
original protocol on liaison in relation to work-related deaths
was signed by HSE, Association of Chief Police Officers (ACPO)
and the Crown Prosecution Servicein 1998. Under that protocol,
there was an agreement that the Police would inform HSE if they
attended a work related death and that a decision would be made
on who would take the lead in the subsequent joint investigation.
44. In March 2003 the protocol was revised
and two additional partners became signatories—the British
Transport Police and Local Government Association. The 2003 revision
of the Protocol contains the following definition of a work-related
death: ". . . a work-related death is a fatality resulting
from an incident arising out of or in connection with work".
It goes on to make it clearer that each fatality must be considered
individually, on its particular facts, according to organisational
internal guidance and a decision made as to whether it should
be classed as a work-related death. In determining the answer
to this question, the enforcing authorities will hold discussions
and agree upon a conclusion without delay.
45. Where a death is not reportable to HSE
under the RIDDOR Regulations, it is primarily a matter for the
police (or subsequently the Coroner ) to determine whether there
is any work-related aspect indicating the need for HSE to be involved.
46. In the case of an apparent suicide where
there are indications of work-related aspects, HSE's involvement
is likely to concentrate on the associated health and safety
management issues. If HSE learns of an apparent suicide where
there is no indication of any work related aspect, HSE would not
investigate.
HSE'S ACTION
FOLLOWING PUBLICATION
OF THE
SURREY POLICE
FINAL REPORT
47. Information contained in the March 2004
Surrey Police Deepcut Investigation Final Report indicates potential
shortcomings in Army management of work-related stress on the
recruits as against the standards recently developed by HSE. In
the light of the report, HSE will contact the MoD to review the
current situation and the standards of protection afforded to
recruits under health and safety legislation relevant to issues
raised in the report.
48. The Coroner's office has been contacted
and made aware that HSE intends to follow up on some general matters
raised in the Surrey Police report.
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