Supplementary memorandum submitted by
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.
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 dutiesa 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 safetythese 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
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 enoughor
not the right thingsto 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
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.
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".
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%.
As regards smaller organisations, in 2004-05,
only 39%, 29% of small, and 17% of micro-organisations had a health
and safety director.
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.
Miscalculation of benefits of introducing legal
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.
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%.
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.
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 whichconsidering that
there are no legal duties for directorscompanies 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
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
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%
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%.
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 13a decrease of almost 50%.
Levels of inspections and enforcement
The pictures that emerges when looking at HSE
data is completely different. Looking at an allindustry
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
This equates a percentual decrease over these
44.2% in improvement notices;
56.3% in deferred prohibition
49.6% in immediate prohibition
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.
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
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.
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 enoughor
not the right thingsto get on top of this highly worrisome
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
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
Levels of prosecution/convictions after fatal
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
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
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.
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
It seems that HSE makes more efforts in some
regions than othersa reaction from HSE would seem appropriate.
E. MIGRANT WORKERS
Are migrant workers more at risk of occupational
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
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.
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
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.
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
UCATT report, October 2007, p 21. Back
UCATT report, October 2007, p 3. Back
UCATT report, October 2007, p 1. Back
UCATT report, October 2007, pp 23-26. Back
UCATT report, October 2007, p 13. Back
UCATT report, October 2007, p 3. Back
UCATT report, October 2007, pp 15-19. Back
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
UCATT report, April 2007, p 8. Back
UCATT report, April 2007, p 4. Back
UCATT report, April 2007, p 5-6. Back