Select Committee on Defence Written Evidence


Memorandum from the Health and Safety Executive

DUTY OF CARE

CONTENTS

  Introduction

  Role and Organisation of HSC and HSE

  Health and Safety Legislation

    —  HSWA

    —  Management Regs 1999

    —  PUWER 1998

    —  RIDDOR 1995

    —  Enforcement

  HSE Policy and Guidance on Work Related Stress

    —  General

    —  The Management Standards

    —  Enforcement

  Workplace Bullying

  Work Related Violence

    —  HSE Definition of Work Related Violence

    —  Enforcement

  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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