Select Committee on Work and Pensions Written Evidence


Supplementary memorandum submitted by UCATT

UCATT

  UCATT is the largest specialist union representing construction workers in the UK and the Republic of Ireland. It represents 125,000 workers in the construction industry both in the public and private sector. UCATT is represented on a number of construction industry related bodies including the Strategic Forum for Construction, the Construction Skills Certification Scheme and CONIAC, HSC's Construction Industry Advisory Committee.

  Some of the questions specified for this inquiry have already been discussed in our previous submission for the evidence session on 28 November 2007. Parts of this information will be restated below in addition to evidence that was not included last time. All evidence concentrates on the construction sector.

SUMMARY

A.   Legislative framework (Directors Duties)

    —    UCATT argues that HSE has deliberately ignored and/or distorted arguments that showed the strong necessity for introducing statutory health and safety duties for directors.

    —    For example, HSE used misleading figures concerning the changes voluntary guidance induce on board level representation concerning health and safety.

    —    HSE miscalculated the benefits of introducing legal duties—a proper calculation reveals a 10-fold higher benefit figure.

    —    HSE underplayed the levels of injury reduction levels that come from the introduction of health and safety responsibilities.

    —    The current legal framework under the Health and Safety at Work Act 1974 (in particular Section 37) provides disincentives for companies not to introduce legal responsibilities for health and safety—these disincentives must be abolished.

B.   Resources/ HSE ability to function as health and safety regulator

    —    HSE has failed to reach its Public Service Agreement target concerning ill health and working days lost.

    —    Construction fatality figures are at a five year high with 77 workers and seven members of the public dying following an accident.

    —    HSE has had a tight budget, and some areas of activity will have suffered from that. HSE should not face further budgetary cuts, as foreseen by government plans.

    —    Nevertheless, UCATT argues that HSE has also not allocated its budget efficiently. It has failed to concentrate on core activities, including proactive inspections and enforcement action, coupled with a high level of prosecutions.

    —    Overall in the past four years number of inspections by HSE fell by 25%, the number of prosecutions by as much as 49%. Enforcement action in construction has decreased hugely, with an overall decrease of 48.5% in improvement notices, deferred and immediate prohibition notices.

    —    There are strong concerns about HSE conducting vital inspections by letter, on the telephone or not at all. Companies need to face on the ground HSE inspections by qualified and experienced inspectors.

C.   Inspection, enforcement and prosecutions

    —    Penalties for health and safety offences have been far too low. Penalty levels need to be considerably increased in order to function as an effective deterrent measure.

D.   Hazardous Occupations

    —    HSE is not doing enough—or not the right things—to tackle construction workplace fatalities.

    —    In particular rising numbers of fatalities in the refurbishment and housebuilding sectors is upmost concern. HSE should clearly spell out what its plans are to bring down the figures in these sectors.

    —    Conviction figures after fatal injuries of 30% between 1998 and 2004 are far too low. Especially since the HSE stated in 2006 that it should be prosecuting in more than twice the number of cases they currently do.

    —    It is worrying that conviction figures between the English regions following a fatality range from 31% (South West) to 9% (East Midlands). Similarly, levels of fines range from £19,000 in the North East to £78,556 in Eastern England. We would like HSE to explain these disparities, as it seems it is making more efforts in some regions than in others.

E.   Migrant workers

    —    Migrant workers face a higher risk of suffering from workplace accidents than indigenous workers.

    —    Contributing factors include: insufficient language skills and a lack of methods to counter-balance this; working bogus self-employed (which implicates less or no training, coming to work when already ill because there is no sick pay, being at the end of the working chain with weakened safety imperatives, no Personal Protective Equipment provided, working on unorganised sites); economically dependent to accept all work asked for disregarding the risks.

A.   LEGISLATIVE FRAMEWORK

  Are businesses given appropriate guidance by HSE on their obligations under health and safety law? Are director's health and safety duties appropriately covered by voluntary guidance?

  UCATT continues to stress that health and safety duties of directors must not be left to a voluntary approach. We have argued and shown that there are compelling reasons to introduce statutory legal duties for directors. Despite this, the chance to massively improve health and safety on construction sites was again missed when HSE/C recently chose to introduce a second set of voluntary guidance instead of going for statutory duties. Some of the reasons why health and safety duties are not appropriately covered by voluntary guidance include:

Use of distorted figures regarding voluntary guidance

  Firstly, UCATT has elucidated how HSE has distorted some vital figures to show a diminished need for statutory legal duties and to buttress its argument in favour of voluntary guidance. Most importantly, "HSE has failed to publicise survey results it had itself commissioned which concluded that, despite the 2001 voluntary guidance, only 44% of organisations have a health and safety director at board level. Instead the HSE has highlighted the figure of 79%—which only applies to the very largest organisations, those with over 4,000 employees".[10] In addition, in a verification survey it was found that 14% of representatives of those very large organisations disagreed with their organisation's claim that a health and safety director was in place. This would decrease the figure down to 64%.[11]

  As regards smaller organisations, in 2004-05, only 39%, 29% of small, and 17% of micro-organisations had a health and safety director.[12] Again, this paints a very different picture from the 79% presented by HSE. It shows that the majority of companies have no health and safety director at board level, not a minority of organisations as suggested by HSE.[13]

Miscalculation of benefits of introducing legal duties

  Secondly, we dispute the figures as to how HSE calculated the costs and benefits that would result from introducing legal duties on directors. HSE has estimated the costs at £877 million and the benefits at between £284 million and £457 million. UCATT's report shows that these figures have not been calculated correctly due to a number of problematic assumptions. When using accurate figures, it was shown that the financial benefits from legal change are about 10 times more than HSE estimated.[14]

Injury reduction levels after taking steps in health and safety

  Thirdly, HSE research of 41 organisations whose directors had taken positive steps in health and safety and assessed the extent to which there had been health and safety benefits. 26 of the 41 organisations provided specific figures concerning the reduction in injury, for which the average reduction rate of injury was 38%. Eleven of the organisations experienced an injury reduction level of over 50%.[15]

  Including the other 15 organisations, and assuming that they did not have any improvement, there was still an average reduction in injury of 25%. Some organisations experienced an 80% reduction in injuries.[16]

Current legal framework provides disincentives to impose safety duties on directors

  At the moment directors of organisations do not have individual legal duties in relation to health and safety; the main duties under the Health and Safety at Work Act 1974 (HSWA 1974) and related legislation refer to the legal entity of a company.

  Section 37 of the above Act establishes that directors can be prosecuted as a result of consent, connivance or neglect. In order to be prosecuted for "neglect", the courts must have ruled that a director has breached a duty.

  In addition, the provision laid out under section 37 create a perverse incentive in which—considering that there are no legal duties for directors—companies are "better off" not to impose safety duties on a director eg in a contract of employment or safety policy. This is the case because not imposing contractual safety duties on directors has the result that the possibility of prosecution is considerably reduced. The introduction of legal duties would completely abolish this perverse incentive.

  What is more, fines imposed under section 37 HSWA have been at a very low level. In the last five years, only 13 company directors involved in construction related incidents were prosecuted under section 37 HSWA 1974. The average fine was as low as £5,970 for offences including breaches of asbestos legislation, falls through roofs and a two cases involving fatal accidents.[17]

B.  RESOURCES

  Does the HSE have sufficient resources to fulfil its objectives as the health and safety regulator and meet its PSA targets?

Failing PSA targets/ rise in number of construction fatalities

  Firstly it needs to be made very clear that HSE has failed to reach two of its PSA targets, namely regarding ill health and working days lost. Also in the construction sector figures were gloomy: In 2006-07, 77 workers (as well as seven members of the public) lost their lives due to construction related accidents. This abysmal figure indicates a 31% increase over the previous year, on top of being the highest figures in the last five years. Self-reported ill-health in construction increased from 86,000 to 90,000, which equates a slight increase from 3.8% to 3.87%.

Budget restraints

  It is without doubt that budgetary restraints have an impact on the working and effectiveness of the HSE. HSE has already had tightened resources, and it is likely to face a further budget cut of 5% between 2008-09-2010-11. By the end of March 2008 it will have over 400 posts fewer than five years ago. This fact is worsened considering that the UK workforce has increased by about 9% since 1997 with an increase in the number of workplaces to inspect by around 20%.

Expanding remit

  In construction, HSE deals with a booming market all over the UK, a situation which is expected to increase even further. Contributing factors include the Government's plans to build three million new homes by 2020, as well as the construction projects for the London 2012 Olympics. Work on the Olympics site has already started and will increase considerably in the coming years. The number of people working in construction currently stands at 2.4 million, a number which has noticeably increased during the last years.

Does HSE allocate its budget efficiently?

  Nevertheless, despite tight resources UCATT strongly believes that HSE does not allocate its budget efficiently. There is overall agreement that proactive inspections and enforcement action, coupled with a high level of prosecutions are core activities in trying to bring down fatality, ill health and injury numbers. The importance and the impact pre-emptive inspections entail are evident when one examines recent figures from the Republic of Ireland. In Ireland the number of safety inspections in 2006 increased by 13%, alongside a decrease in the number of fatalities from 25 to 13—a decrease of almost 50%.

Levels of inspections and enforcement

  The pictures that emerges when looking at HSE data is completely different. Looking at an all—industry picture, in the past four years the number of inspections by HSE fell by 25%, with the number of prosecutions falling by 49%.

  In construction, there are equally disturbing figures. The number of enforcement notices in construction issued by HSE has fallen dramatically between 2002-03 and 2005-06 (last available figures). In 2002-03, HSE issued 778 improvement notices; 32 deferred prohibition notices; 2,772 immediate prohibition notices; a total of 3,582 enforcement notices. In 2005-06, the number of notices in each of these categories has decreased to figures as low as: 434 improvement notices; 14 deferred prohibition notices; 1,398 immediate prohibition notices; totalling 1,846 enforcement notices.

  This equates a percentual decrease over these years of:

    —    44.2% in improvement notices;

    —    56.3% in deferred prohibition notices;

    —    49.6% in immediate prohibition notices; and

    —    an overall decrease of 48.5%.

  The importance of proactive inspections and enforcement cannot be underestimated, activities which should go hand in hand with a much higher level of prosecutions.

HSE Investigations

  In addition, it appears there have been cases where HSE simply does not accomplish the tasks it should do. We have reported earlier that there have been concerns that HSE accident investigations have been conducted via letter. This would mean that HSE is not carrying out proper investigation processes, but is relying on the companies' own investigations and interpretation of events. A similar experience has received press coverage in early December this year when HSE ignored a request for an on-site inspection after a worker at a structural steel firm had resigned over safety concerns. The problems brought to HSE's attention by the worker included grave issues such as no test certificates for overhead cranes and nobody being qualified to use the cranes; no chain certificates and no public walkways identified.

  Taking into consideration its budgetary constraints, we still believe that all mandatory investigations merit a full investigation in person by a trained fully qualified inspector. In addition, no doubt can be shed on the fact that safety concerns as grave as the ones mentioned above merit an on-site inspection by an HSE inspector. There is a good chance that an investigation like this could have prevented the most recent crane accident in Forest Hill on 12 December, in which luckily no person was injured.

C.  INSPECTION, ENFORCEMENT AND PROSECUTIONS

Are penalties for health and safety offences proportionate?

  The current levels of penalties do not sufficiently take account of the effects breaches of health and safety legislation tend to have. For example, failing to comply with an improvement or prohibition notice issued under the HSWA carries a lower court maximum of £20,000 and/or six months imprisonment. The same amount applies for breaches under sections two to six of the HSW 1974 which set out the general health and safety duties of companies, the self-employed, manufacturers and suppliers. Other breaches of the HSWA and breaches of relevant statutory provision under the Act (eg requirements to carry out sufficient risk assessment or to provide PPE) even have a lower court maximum fine of only £5,000. (Unlimited fines can be imposed by higher courts in all cases.)

  Looking again at the worst case of a fatal injury, there has been a positive development in so far as the average fine following a death has increased from £38,000 in 1998-99 to 98,000 in 2003-04. Despite this positive increase, the amount of fines companies are charged with is still not high enough to be an effective deterrent for a lot of companies to comply with the law and their duty of care of their workers.

D.  HAZARDOUS OCCUPATIONS

Is HSE doing enough to tackle the rise in fatalities in the construction industry?

  77 people construction workers died in 2006-07 (as well as seven members of the public), a 31% rise. It is the highest figure in the years between 2002 and 2007, a period which has seen the deaths of almost 350 construction workers. In consideration of these figures there can be no doubt that HSE is not doing enough—or not the right things—to get on top of this highly worrisome development.

Enforcement action

  From the above it has become clear that inspections and enforcement must be a key activity of the HSE. However, decreasing figures of inspections compared to a rise in the workforce and companies to be inspected indicate that HSE is doing exactly the opposite.

Housebuilding sector

  Considering that there has been a considerable rise in fatalities in the housebuilding and refurbishment sectors, these sectors must be a key focus of the HSE in the coming period. Already the Construction Safety Forum on 17th September summoned by Secretary of State Peter Hain was particularly concerned about the developments in these sectors. We would like HSE to exactly spell out what its plans are to bring the fatality rates in these sectors down.

Levels of prosecution/convictions after fatal injury

  Another area of activity which HSE is not dealing with sufficiently is its work in prosecuting companies. We believe that the insufficient amount of work HSE dedicates to the prosecution of companies which are in breach of vital legislation has a considerable bearing on safety levels and fatality rates.

  Looking only at convictions following fatal injury it becomes apparent that the percentage of deaths resulting in the conviction of a company has been alarmingly low in the last years. What is more, the percentage has decreased massively within the six-year time period of 1998-2004. While in 1998-99 42% of construction deaths resulted in a company's conviction, the figure was only 15% in 2003-04. In total, in the six-year period between 1998-2004, as little as 30% of construction deaths led to the conviction of a company (152 convictions following 504 deaths).[18]

  Considering that the vast majority of prosecutions lead to a conviction of the company when sued after a fatal injury has occurred, UCATT strongly believes that a much higher level of prosecutions by HSE would act as a successful deterrent for construction firms that put the health and life of their workers at risk. Especially, since an internal audit conducted in 2006 by HSE found that inspectors should be prosecuting in more than twice the number of cases they currently do, if they complied with HSE's own criteria defining when a prosecution should take place.[19]

Inconsistency in level of convictions and fine after fatal injury

  UCATT is also concerned about the considerable inconsistency in the percentage of conviction between the English regions. While on average 27.6% of deaths in construction have resulted in a conviction in London, Eastern region and the South West (1998-2004), this figure compares to a conviction level of 9% in the East Midlands.[20] Similarly, there has been a considerable discrepancy between the average level of fine imposed in the different English regions, ranging from £18,650 in the North East to £78,556 in Eastern England. The same applies for variations between Scotland, England and Wales, where the average fine per conviction of £21,917 in Scotland compares to £49,323 in England and £68,125 in Wales.[21]

  It seems that HSE makes more efforts in some regions than others—a reaction from HSE would seem appropriate.

E.  MIGRANT WORKERS

Are migrant workers more at risk of occupational accidents?

  No robust figures are available on the exact number of migrant workers in the construction industry. UCATT is of the belief that the figure of 350,000 arrived at by the Institute of Public Policy Research is the most accurate. These figures are supported by evidence from the Polish Government who estimate that 250,000 skilled construction workers have left since 2004, the vast majority coming to Britain. When taking into account migrant workers from other accession countries and also Polish workers with no prior construction skills, the 350,000 figure is viable.

Language issues

  A variety of factors make migrant workers particularly prone to experiencing risks to their health and safety. Most importantly, a high percentage of migrant workers do not have sufficient language skills to understand all orders as well as the site induction. Many companies do not have sufficient means in place that can counter-balance this dilemma, eg by interpretation, translation, or non-verbal signage. Having insufficient language skills further increases the problem that orders get weakened anyway when passed down along the supply chain.

Bogus self-employment

  Secondly, a lot of migrant worker work bogus self-employed. The situation for Bulgarian and Romanian workers is particularly bleak as due to current employment restraints they are not entitled to seek direct employment. Bogus self-employed workers generally have a higher risk of injury for several reasons. There is no duty of care which employers have for employees; they receive no or little safety training; they are more likely to work when already in a state of ill health as they receive no sick pay; they are at the very end of the working chain where safety imperatives are at their weakest; and they tend to work on unorganised sites which do not have the benefits of union representation and initiative.

Economic dependency

  On top, migrant workers tend to be economically highly dependent from their employer or gangmaster, which makes them more likely to accept/carry out any job asked for no matter what its risks are.

UCATT

January 2008







10   UCATT report, Bringing Justice to the Boardroom. The Case against Voluntary Guidance and in Favour of a Change in the Law to Impose Safety Duties on Directors, Centre for Corporate Accountability, October 2007, p 1. Back

11   UCATT report, October 2007, p 21. Back

12   UCATT report, October 2007, p 3. Back

13   UCATT report, October 2007, p 1. Back

14   UCATT report, October 2007, pp 23-26. Back

15   UCATT report, October 2007, p 13. Back

16   UCATT report, October 2007, p 3. Back

17   UCATT report, October 2007, pp 15-19. Back

18   UCATT report, Levels of convictions and sentencing following prosecutions arising from deaths of workers and members of the public in the construction sector, Centre for Corporate Accountability, April 2007, p 3. Revised figures after HSE had changed some of its data in the HSE online databases. Back

19   UCATT report, April 2007, p 8. Back

20   UCATT report, April 2007, p 4. Back

21   UCATT report, April 2007, p 5-6. Back


 
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