Memorandum submitted by CBI
As the UKs leading business organisation, the
CBI speaks for some 240,000 businesses that together employ around
a third of the private sector workforce, covering the full spectrum
of business interests both by sector and by size. Member companies,
which decide all policy positions, include 80 of the FTSE 100;
some 200,000 small and medium-size firms; more than 20,000 manufacturers;
and over 150 sectoral associations. We are pleased to make this
submission on behalf of our wide range of member organisations.
The framework under the Health
and Safety at Work etc Act 1974 has been considerably distorted
by various specific topic related legislation, mostly of EU origin,
that is serving to add volume and confusion to the set of legislation
that employers have to read, understand and implement.
Businesses of all sizes want
simple goal setting legislative backed up by good guidance in
plain English on specific topics, coupled with an expectation
of fair enforcement.
The risk assessment basis for
health and safety legislation has been a useful development to
enable businesses to have a consistent approach to all operational
However, enforcers, consultants
and others who are more used to dealing with specific duties are
tending to extrapolate a single incident to a general risk and
the current risk aversion publicity and culture is undermining
the debate on acceptability and tolerability of risks at both
expert and societal level.
The legislation on corporate
manslaughter coupled with developments on directors duties are
instilling "blame" rather than "prevention"
HSE does have adequate resources
and has access to historical and current information to ensure
that they are applied to the areas of greatest risk and where
action is most needed and this includes high hazard occupations.
HSE is one of the most important
actors in the chain of delivery of good health and safety standards
but the effectiveness of inspection depends largely on the business
reputation management profile.
Further work is required to
identify what, if any, factors surrounding migrant workers may
make them more at risk of occupational accidents.
Targets have a limited use and
HSE should review whether they have the right targets and what
other actors need to be mobilised to help achieve them.
1. It is important to set the context for
this inquiry. UK occupational health and safety performance compares
well to that of other European countries and developed nations
worldwide. There has been a significant improvement in accident
statistics in the UK since the introduction of the Health and
Safety at Work etc Act 1974 (HSWA). Although some of this has
been achieved from changes in employment patterns, technologies
and industrial structures, the positive contribution by people
at UK workplaces, the maturity of health and safety law and the
risk management approach have been significant factors. CBI members
also believe that the existence of an independent and adequately
funded HSE has played a key role in the success achieved thus
2. It is noted that the decline in accident
and incident rates has plateau-ed in recent years. The CBI believes
that in the light of the introduction of the framework and supplementary
directives and the development over the last 15 years of an extensive
body of health and safety regulation, HSE should continue to focus
on greater promotion activities and better guidance in order to
improve standards. The CBI would not wish the HSE's limited resources
to be diluted by activities that are not part of its core responsibilities.
3. The CBI views its relationships with
HSC/E in a very positive light and will work under any new governance
arrangements to continue a constructive dialogue and to ensure
that our input reflects the consensus view of a wide variety of
4. We have answered the specific points
of inquiry under the headings below.
Is the health and safety regulatory burden on
businesses proportionate? Are EU directives interpreted and translated
by HSC into UK law appropriately? Are businesses given appropriate
guidance by HSE on their obligations under health and safety law?
What impact will the Corporate Manslaughter and Corporate Homicide
Act (2007) have on businesses' approach to occupational health
and safety? Are director's health and safety duties appropriately
covered by voluntary guidance? What influence does HSE have as
a statutory consultee in local authority planning?
5. The CBI believes that the legal requirement
to consult on health and safety has been the trigger for a culture
of consultation within the HSE that has benefited all stakeholders.
This has had the effect of including a wide range of opinions
from employees, employers, scientists, academics etc into the
policy formulation and development process. This has also assisted
business compliance by giving business early warning of proposals,
which allows them to anticipate and spread the costs of compliance.
Furthermore the process of consultation enables options other
than regulation to be considered to achieve the objectives and
6. The current legislative structure provides
comprehensive protection for employees and others working in a
variety of circumstances. The HSWA has a balance of authority
and responsibilities on virtually all duty holders involved in
work activities. Changing patterns of employment have thrown up
some challenges such as contractorisation and the growth of small
firms but the CBI believes that the current regulatory system
can be applied to these circumstances and supplemented by guidance
and directing HSE's promotional activities to these areas.
7. The CBI strongly believes that the risk
assessment basis is the most effective way of regulating health
and safety because it balances the need for consistency and proportionality
and enables regulation to adapt to changing circumstances, issues
and technologies. HSE's approach to risk assessment provides objective
and rational justifications for actions but the ability to apply
these widely is constrained by outside factors such as public
perception, political priorities etc. Business is concerned that
the current image of health and safety is undermining dialogue
on sensible risk management. The involvement of many others in
the health and safety systems, insurance and compensation systems,
consultants, enforcers and the media find public sympathy with
the risk aversion message rather than the sensible risk management
message. This is now a societal issue that will be challenging
to turn around.
8. The overlay of detailed regulations from
Europe has most recently distorted the regulatory burden on business
with the result that detailed requirements have obscured the fundamental
objective to control risks in a proportionate and sensible way
and added to the volume which an employer must understand and
deal with. The development of a range of topic based directives,
that have been the source of most recent UK health and safety
law, may have been inevitable in a Europe of many member states,
all wanting to influence the agenda to best suit their national
situation. However, some recent directives (such as the one on
electromagnetic fields) have had little basis in sound science,
principles of better regulation and cost effective contributions
to real improvements in worker protection.
9. Business supports the careful case by
case transposition, where we can co-ordinate the EU directive
requirements and terminology with the UK legal principles. We
would not wish to see copy over, as the legal interpretation of
EU requirements directly into UK law would limit the ability of
duty holders to use a more flexible risk based approach.
10. It is essential that both the UK and
the EU continue with their simplification programmes so that employers
understand the essential messages in order to improve compliance,
which should strengthen worker protection. However, a wholesale
renegotiation of the EU health and safety law would not now be
a productive use of resources and the effort should concentrate
on providing guidance of practical use to those at the workplaces.
11. CBI believes that simplifying regulation
results in better, smarter legislation, which is easy to understand
and comply with, improves levels of worker protection, and helps
to secure stronger commitment and compliance from businesses.
We support the objectives of the better regulation initiatives
and the Hampton review and are pleased to note the HSE co-ordination
and delivery to these programmes. They have taken the lead in
publishing enforcement policies and simplification plans. Their
inspection and enforcement has been risk based and they already
have a modern suite of sanctions to draw on. They will have the
opportunity to consider any relevant alternatives that may be
appropriate from the outcome of the debate on the Regulation,
Enforcement and Sanctions Bill.
12. HSE has over many years provided much
guidance on all aspects of legal compliance by consultation and
engagement with a wide range of stakeholders and experts. This
guidance is respected and used internationally. More recent guidance
has been written for SMEs and this has improved its accessibility
for experts and non- experts alike. Although there are now many
sources of guidance at sector, national, European and international
level, HSE guidance is seen as the official interpretation of
legal compliance. An HSE audit of what of their stock is current
and relevant would be useful. Revision of the useful and removal
of the outdated would simplify the landscape for those seeking
sources of authoritative information on compliance. We do not
support the trend of HSE subcontracting development of guidance
out to others as the authors have no disincentive to over specify
in order to protect themselves.
Corporate Manslaughter and Corporate Homicide
13. Although it has been stressed that this
Act does not impose new duties on businesses, most companies are
taking the opportunity to review their health and safety systems
to ensure they will withstand the inevitable new scrutiny that
application of the Act could impose in the event of a work-related
fatality. We would be concerned if this manifested itself in unnecessary
acts of risk aversion such as outsourcing or offshoring high risk
but well controlled company activities. Business has concerns
that the enforcement of the Corporate Manslaughter and Corporate
Homicide Act (2007) will undermine the prevention and sensible
risk management approach to health and safety as enforcers will
find it easier to pursue evidence for a case than try to argue
with pressure groups that a case is inappropriate or not in the
public interests etc. This will add uncertainty to businesses
and could unnecessarily undermine business reputations. The recent
proposals for sentencing guidelines signal that, in the event
of a fatality businesses will have substantially more to lose
and it should be anticipated that they will respond appropriately
to protect their assets and reputation.
14. CBI member companies believe that director
leadership plays a key role in good health and safety performance,
that improvement in director leadership is needed to improve health
and safety outcomes, that credible and clear guidance on director
leadership for health and safety is essential and that current
legislation needs to be effectively enforced. CBI members are
opposed to the development of further specific directors' duties
in health and safety legislation for four main reasons:
Specific duties on directors
will add to company bureaucracy, insurance costs and may lead
to unnecessary risk aversion.
There are already legal duties
on directors in the wider context of the Companies Act 2006. Directors
have to satisfy standards for company activities, systems and
stakeholder interests and it is for them to make the judgement
of where the balance lies in the often competing and conflicting
demands on resources. There is legislation to disqualify directors
in certain circumstances. Specifying duties in one area of corporate
activity may prejudice the flexibility of directors to act properly
and proportionately in other areas.
The general legislation on companies
and directors has been recently reviewed and enacted. Now is not
the time to develop separate primary legislation on directors'
duties in health and safety. It does not fit with the Government
Better Regulation Agenda.
The apparent disparity of numbers
of prosecutions of directors of small firms compared with large
firms as a basis for developing specific health and safety duties
on directors is fundamentally flawed. The cohort of prosecutions
is so small that conclusions cannot be drawn. Statistically there
are far more small firms than large firms in the UK. The complexity
of large firm structures, responsibilities and authorities makes
the linkages between cause and effect and the clear attribution
of blame inherently more difficult in large firms than in small
firms. More and specific law on directors' duties will not equivocally
address this challenge.
15. The way forward to motivate directors
in enhancing health and safety performance is to utilise properly
the current legislation. CBI members endorse and are actively
using the latest succinct and relevant guidance developed by the
IoD and HSC to reinvigorate training for directors on their health
and safety duties in the context of the new legislation on overall
company performance for enhanced stakeholder value.
HSE as a statutory consultee in local authority
16. The views and expert information provided
by HSE to local planning authorities is respected as far as it
goes. As with the advice from other statutory consultees it can
be taken into account or ignored if there are more pressing local
needs. However, there is a need to question the use of such expert
and tailored HSE resources, when their advice can be ignored.
The development of up to date generic advice for local planning
authorities could be a short-term challenge for a long-term gain.
Does the HSE have sufficient resources to fulfil
its objectives as the health and safety regulator and meet its
PSA targets? Does HSE allocate its budget efficiently? Are there
areas of HSE's operations that require additional investment?
17. Business is well used to working in
a highly competitive environment with finite resources and understands
the need for priorities to be established within which there is
sufficient flexibility to respond to changing work situations.
The priorities for HSE and other enforcing authorities is an important
public debate that has at its heart the funding of public services
and the way that the demands of the public are satisfied. It is
overlaid by legal frameworks that were established without reference
to discussions on taxation and funding of public services. Although
there are efficiencies that can be made to get more out of less
from all public bodies there is a limit to this that the public
and others must recognise. Setting priorities in a transparent
way and sticking to them in the relevant time frame and circumstances
is the practical way to proceed
18. There are some 4,000 staff at HSE, considerable
scientific support at HSL and much internal and external guidance.
It is essential that these resources are applied efficiently and
effectively. HSE resources should be targeted at work related
activities that primarily involve the employer-employee relationship.
Its priorities in relation to public safety should be when HSE
expertise and legal powers alone can make a significant contribution
to the prevention of similar incidents. This will particularly
be when the public are inadvertently exposed to the same risks
as employees rather than when they make a choice about their involvement
in the activity.
19. The CBI supports the setting of targets,
but is concerned that in practice they can distort priorities
and are limited because they can apply only to areas that are
quantifiable. The PSA targets were chosen at the time on rather
fragile evidence of the baseline statistics. If targets are set,
they should be set in close consultation with stakeholders, taking
into account the wider context, and structured in a way which
enables them to support the achievement of objectives, rather
than become the objectives in themselves. The danger is that the
PSA targets can be achieved statistically by means that do not
relate to improvements in health and safety performance.
20. HSE alone cannot achieve its demanding
PSA targets; it requires the whole of the health and safety system
and most importantly the contribution of all at the workplace
to help achieve them. The CBI supports the objectives of the HSE
work with large organisations that are able to influence large
part of the customer and supply chain and amplify the HSE effort
to improve health and safety systems and help achieve PSA objectives.
21. The detail allocation of HSE budget
is not in the public domain. As with all rapidly moving policy
and enforcement areas it is never easy to remove funds from any
particular area. Improvements may continue for a while but in
the longer term the vacuum may be filled by others with a different
agenda and can create undesirable changes that then require further
effort to get back on track.
22. Business sees a continuing need for
HSE and business resources to be provided to train inspectors
in technical competence and business systems. Business does incur
costs by supporting this training activity and the business contribution
should be recognised.
23. It is essential that HSE places priorities
and provides resources for those sectors that have the greatest
risks and those performers within the sectors that are not making
a positive effort to make improvements.
What impact has the reduction in inspection rates
had on standards of occupational health and safety? Does HSE get
the balance right between prevention and enforcement? Are penalties
for health and safety offences proportionate? Should the removal
of its crown immunity be a priority for HSE? How effectively do
HSE and local authorities interact in their inspection roles?
24. There is no clear evidence that inspection
is related to standards of health and safety but business believes
that a proactive HSE is the important piston applying pressure
to the whole system. It motivates others to take actions. Removing
that pressure could send signals to others in the chain. A one
off hit from any of the actors cannot achieve sustained health
and safety performance, be they enforcers, publicity campaigns,
and employer and worker interventions. Action needs to be continuously
refreshed to deal with industry, technology, issue changes and
new worker and employer entrants.
25. If HSC/E is concerned about inspection
rates they should explore the reasons why. The numbers of HSE
inspectors who actively and routinely do inspection visits remains
reasonably constant. Lower inspection rates may reflect, administrative
burdens, training requirements, efficiency, travel to sites, complexity
of issues etc.
26. Whilst inspection, enforcement and education
campaigns must take priority, the HSE policy work has been influential
in providing co-ordination with other government departments,
particularly where there are overlapping responsibilities. The
HSE approach to risk based regulation has been useful in influencing
other regulatory regimes and the common interpretation of risk
across government. Business is not able to look at health and
safety in isolation; rather it manages health and safety within
the wider business management process, together with other facets
of management. However, there is a need for a more pragmatic approach
by all enforcers who are now not able to fall on specific duties,
but may be using risk assessment (within a risk averse culture)
to attempt to impose higher standards. Allowing discussion on
health and safety to become a matter of ridicule is not in society's
27. Business supports and expects the need
for a balance between prevention and enforcement but from the
business perspective this balance is not achieved. Prevention
should be the dominant role. However, most enforcement action
arises from investigation of reported accidents and incidents.
This indicates that the compliant and reporting companies are
more targeted for enforcement than those who do not report accidents.
This reinforces the advantages of not reporting incidents and
28. There are sentencing guidelines for
the imposition of fines for health and safety offences that are
intended to provide consistency and comparability with other offences.
For offences heard in Crown Court, the imposition of unlimited
fines has always been possible. There is no higher monetary sanction
and judges have used their powers recently to impose punitive
fines. It is important to consider the sanction in relation to
the offence which for health and safety is usually a lack of or
an inadequate a provision or system and is not necessarily related
to the injury.
29. Removal of Crown immunity for HSE should
go hand in hand with removal of Crown immunity for other government
departments and enforcement authorities. It should be given a
priority as business sees it as an important signal that it is
operating on a level playing field.
30. There will always be a challenge where overlapping
and often conflicting risk control measures may be required. E.g.
fire safety, road safety, environmental health, food safety provisions.
Businesses often have to develop local understandings to clarify
who provides advice, enforcement and agreement on acceptable standards.
The most common business concerns relate to inconsistency amongst
Local Authorities and in particular comparing the approach of
LAs that have a general role with those that have particular expertise.
There are also currently a number of trials ongoing with LOPS,
LAPS, Retail Enforcement Pilot etc and there is a need for clarity
to measure progress. Many national businesses would prefer one
key authority to agree national (including Scotland, Wales and
Northern Ireland) policies and then local intervention should
be focused on the application locally of the policy not the policy
Is HSE doing enough to improve health and safety
standards in hazardous occupations, in particular: is HSE doing
enough to tackle the rise in fatalities in the construction industry?
is HSE doing enough to tackle offshore health and safety risks
in the oil and gas industry? is HSE doing enough to maintain health
and safety standards in the chemicals industry?
31. It is important that HSE resources are
applied proportionately to those sectors where the risk are greatest,
eg construction and also for other high-risk sectors, agriculture,
Sites subject to permissioning regimes
32. The public need particular reassurance
of the safety of the high hazard industries such as chemicals,
oil and gas. These industries are subject to permissioning regimes
that impose considerable costs on business to have an audit trail
that proves compliance with health and safety legislation. Such
businesses put considerable effort into risk management to ensure
their continued survival, sustainability and reputation management.
HSE should diligently, efficiently and fairly enforce those permissioning
33. In relation to chemicals, although HSE
is the competent authority for REACH they should recognise that
there is a conflict between liabilities that can arise for businesses
handling chemicals from the REACH and occupational health and
safety frameworks. HSE should be sensitive to the considerable
administrative burden placed on businesses manufacturing, importing
and using chemicals by the REACH regime.
Increased Charging for inspection of sites subject
to charging regimes
34. CBI members have expressed serious concern
about the proposals to substantially increase, significantly above
inflation in April 2008, the charges under the relevant regimes
(onshore major hazards, gas pipeline safety and offshore oil).
The consultation has been late (started in Oct 2007) and partial.
The proposal to extend charges at sites subject to charging regimes,
to include all health and safety activities, should be reconsidered
so that business can see that the charging basis is fair and transparent.
35. For the construction industry HSE should
be careful not be overreact to the recent rise in fatalities without
adequate analysis of the causes as we may not be developing the
right solution. Although construction activities have the highest
incidence rate of fatalities, the figures show that a steady decline
in construction fatalities over the past 15 years has been reversed
for 2006-07 though in such a small numerical sample there is little
statistical significance. However, we cannot afford to be complacent
and CBI supports the construction sector framework for action
to address the issues. This builds on the good practice from the
major construction and building services contractors who have
shown leadership in H&S management with the result that numbers
of fatalities have fallen in their sector. This will provide an
exemplar for other sectors in construction where the fatalities
have risen. After all the recent changes in construction health
and safety regulation, any further legislation would be counterproductive.
HSE could play a more active role in helping to ensure that supply
chain initiatives do not generate excessive paperwork or lead
to a duplication of effort, since this can distract from the identification
and reduction of significant risks, particularly in smaller businesses.
Are migrant workers more at risk of occupational
accidents? Does HSE do enough to protect migrant workers from
health and safety risks?
36. Business believes that all workers should
be provided with the same level of health and safety and employment
protection. They should be provided with the health and safety
information, training, instruction, supervision and safe systems
of work so that they know what to do and why they have to do it
to ensure their own safety and that of their colleagues.
37. Responsible businesses recognise that
migrant workers may need to be provided with language skills to
ensure that they understand and act on information and instructions.
There are many examples of such businesses providing interpretation
until the intensive language training is effective. Businesses
mention that when the safety systems are explained and understood,
migrant workers are often most compliant.
38. There is a need for HSE to investigate
further whether migrant workers are more at risk of occupational
accidents and if so, what factors contribute to this. Until this
is done we may not be providing the right policies and practices
to tackle the problems.
What must HSE do to meet its PSA targets for ill
health and days lost per worker? Does HSE do enough to embed vocational
rehabilitation in the workplace?
39. The PSA targets for ill health and days
lost due to ill health are the most challenging as the statistical
baselines are most fragile. This is not an excuse to not have
such targets but is a note of caution about whether, when and
how these targets can be judged to be achieved. The reporting
arrangements for such figures are not holistic and do not involve
access to information from the medical profession. It is not easy
to clearly attribute many of the causes of ill health and absence
to working conditions without incurring considerable costs.
40. There is no single source of ill health
figures that can be relied upon. Even combining most available
public sources, official HSE reportable diseases, claims for prescribed
industrial diseases, self reported ill health, medically validated
schemes for particular diseases all require considerable manipulation
to contribute to a fair overview.
41. Again HSE is not the sole actor that
will influence the PSA targets for ill health. GPs will make a
major contribution from the advice offered to them and passed
onto their patients on the best way to manage musculoskeletal
and mental health conditions. GPs, patient/employees and employers
working together in making reasonable adjustments to accommodate
and rehabilitate people back to appropriate work will provide
the major contribution to help HSE achieve the PSA targets.
42. Vocational rehabilitation involves a
multidisciplinary approach and businesses are putting considerable
resources into investigating what works, when and why. There are
many service providers offering physiotherapy, employee assistance,
support programmes, retraining, counselling, occupational health
services, and cognitive behavioural therapy. Some of these are
in the occupational health and safety domain and others in employment
provisions. HSE does not have competence in all areas and can
make a contribution to inform and embed vocational rehabilitation
in the workplace, alongside others.
43. CBI member companies recognises the
importance of rehabilitation for the individual, the business
and the state and is working in various initiatives to support
measures to increase the availability of rehabilitation programmes
if they are established in a way which supports business competitiveness
44. In the provision of occupational health
services and rehabilitation services, CBI views flexibility as
important. The focus for HSE should be on access and competence
rather than imposing prescriptive requirements. CBI members require
flexibility for access to occupational health services to be related
to workplace risks rather than prescriptive periodic workplace
medicals for employees. This system would be more costly and bureaucratic
with the highest proportion of costs falling on small firms and
not necessarily delivering any higher standards of health in the
45. The challenge with the health work and
wellbeing agenda is that it is an extensive shopping list of initiatives
that are linked but there are too many different working groups/
activities that businesses is unable to get clear messages that
make the business case. It is essential that benefit provisions,
tax incentives and current medical practice are all aligned to
reinforce the message that work is better for health and wellbeing