Supplementary memorandum from the Trades
Union Congress (TUC)
The Trades Union Congress represents around
7 million employed people in 70 trade unions. It campaigns for
fairness and decent standards at work and promotes partnership
with the employers and Government to secure stable industrial
relations, growth and prosperity.
The TUC welcomes the opportunity to make a written
submission to the inquiry of the Select Committee. Our submission
will focus on the operation of the Health & Safety at Work
Act 1974, (HSWA), its enforcement, the performance of the Health
and Safety Executive and Commission, and the resourcing of health
We are hugely supportive of the work that the
organisation and its staff does, and believe strongly in the ethos
that underpins it. The trade unions, and the members these unions
represent would want the TUC to place on record our enormous regard
for the organisation.
The TUC is strongly of the view that the key
to a good safety management system is to have it underpinned by
the twin pillars of proper risk assessment and active worker involvement
and many of our comments will reflect that.
1. THE LEGISLATIVE
1.1 The introduction of the HSWA was followed
by a steady decline in the rates of serious and fatal injury within
British industry. This decline bottomed out in the mid 1990's.
This fall has corresponded to a similar decline in the numbers
employed in heavy industry although the decline in fatality rates
in every industry makes it likely that the reduction in deaths
at work is not merely an artefact of the changing composition
of the economy but also a result of a changing safety culture
in the workplace driven in part by the HSWA and the HSE/C. At
the same time there has been a large increase in the number of
cases of self-reported occupational illness, with over two million
people reporting a work-related illness and 4-5,000 people dying
every year from asbestos-related diseases.
1.2 Overall, the TUC believes that the HSWA
has stood the test of time. Its basic premise, that employers
have a duty of care and must protect the health safety and welfare
of their workers and others, and should assess all work activities
in order to reduce or eliminate risk is uncontroversial and accepted
by most unions, businesses, professionals and the public. However,
the legislation is primarily enabling, and much of the application
of the HSWA has been through regulation. Since 1992 that has focused
much more on risk assessment rather than the setting of specific
absolute standards. In principle the TUC supports that approach
so long as employers carry out proper risk assessments and implement
the findings. However, there is evidence that this is not happening.
Evidence is that around half of employers (mainly SMEs have not
even done a basic risk assessment. It is also the case that the
HSC appears to be relying much more on goal-setting as opposed
to actual prescriptions, which makes both compliance and enforcement
more difficult, particularly in small and medium sized enterprises.
1.3 The HSWA also had the principle of consultation
with workers, through their unions, at its core. This principle
was designed to create flexibility in the legislation, and was
the basis for the self-regulatory regime which was envisaged as
developing. Unfortunately this message was effectively abandoned
during the 1980s when the then Government was generally hostile
to unions, and has not subsequently been given sufficient profile,
or enforcement activity. In addition, since the 1970s, the proportion
of the workforce with union representation has almost halved from
about 75% to 30-40%, meaning that the potential for proper self-regulation
has also declined.
1.4 At the time of its introduction the
HSWA probably created one of the most clear and practical frameworks
on health and safety anywhere in the worldthe only other
countries with comparably low work fatality and injury rates are
the Scandinavian countries which have a very similar legislative
structure. However, since 1989 more and more of the regulations
made under it have been based on European Directives, which, despite
some anti-European rhetoric, are in fact based largely on the
same Anglo-Scandinavian principles as the HSWA. The HSC have now
indicated that they do not envisage any further major regulation
unless it is instigated by Europe. This has had the effect of
transforming the UK from a world leader, to a follower.
1.5 There has been a trend in recent years
to be apologetic about health and safety in general, and particularly
regulation and enforcement. Regulation is seen as a "burden
of business" rather than the hallmark of a civilised society.
The TUC would contend that any employer who cannot operate without
putting the lives or health of their workers at risk is not fit
to be an employer. We do however welcome and support the work
done by the HSE to simplify regulations and administrative requirements
as these make for better, more effective regulation where the
level of protection is not reduced.
1.6 We are concerned on pressure from some
parts of Government to move away from the regulatory framework
towards a "voluntary" approach. The experience in all
other areas, including seat belts, smoking restrictions and crash
helmets is that the voluntary approach does not work and that
only a statutory duty, backed up by enforcement where necessary
will ensure compliance. Where voluntarism has been attempted in
the health and safety field, such as Ireland and the USA, the
experience has not been positive.
1.7 There has also been some discussion
of the problems of SMEs in health and safety. The TUC accepts
that more has to be done to support SMEs and there is a case for
ensuring that information and advice is specifically targeted
at them, however it is important that all employers, regardless
of size have the same statutory duty to protect the health safety
and welfare of their workers.
1.8 The TUC is concerned that the wide-ranging
coverage of Section 3 of the HSWA, which applies to the duties
of employers to persons other than their employers is problematic.
While it is quite right that employers should owe a duty to the
public from their activities, this section has led to some confusion
as to the role of the HSE/C in issues of public safety. This is
particularly the case in respect of areas where the risk is secondary
to the work-relatedness of the activity, such as hospital-acquired
infections, deaths in residential homes etc. We believe that public
safety issues and public health issues are important, but, unless
they relate primarily to the process of work, should be dealt
with separately from work-related health and safety matters.
1.9 The TUC believes that the HSWA, in itself,
requires only limited review to ensure that it reflects the reality
of working life in the 21st century. The main issue is its enforcement,
which is dealt with later in this submission.
2. HEALTH &
& SAFETY COMMISSION
2.1 The TUC believes that the HSE/C provide
an excellent service and its staff are of an extremely high standard.
The TUC sees most of the difficulties of the organisation as stemming
from restrictions in the resources available rather than organic
2.2 The TUC pressed for the decision to
place the HSC/E under the overall control of the Department of
Work and Pensions, to ensure that HSC/E was able to play its part
in reducing the economic burden of poor health and safety, and
to stimulate action on rehabilitation.
2.3 The proposed merger between the Commission
and Executive is broadly supported by the TUC, who believe that,
so long as the tri-partite structure is maintained this will allow
the Commission to have a more strategic overview of the work of
the Executive and also provide a structure more in keeping with
the 21st century.
2.4 The TUC welcomes the fact that the Commission
and Executive has now taken a more active role in occupational
health issues, including issues around stress and sickness absence,
but believes that this work is now at risk if the proposed cuts
in the HSE budget go ahead.
2.5 In recent years there has been a campaign
within certain parts of the press and by some employers to undermine
the HSE and the safety culture that they try to develop and enforce.
The TUC sees this as a sign of the success of the HSE. In the
following paragraphs the TUC will raise a number of issues where
we believe that problems have arisen or things can be improved
but these should be seen in the context of our broad support for
an organisation that has tried to provide a first class service
with third class funding.
3.1 In recent years the demands on the HSE
have increased in a number of important areas. These include:
Occupational health issues like stress and MSDs which make up
over 70% of sickness absence and which the HSE has only recently
started addressing. Much of this work would have to stop or be
cut back; construction, where the house building boom and the
London Olympics have lead to increased activity rates in the industry
together with incidents like crane collapses; the chemical industry,
in the light of the incidents at Buncefield and Texas City; in
the workforce generally with the increases in the number of migrant
workers and contractorisation; public safety, where there is more
demand for the HSE to get more involved in issues such as gas
safety and hospital-acquired infections. It was also called upon
to lead to inquiry into the recent release of the Foot and Mouth
virus; off-shore oil rigs where the increased price of oil has
meant that aging rigs that were due to be scrapped are now having
their working lives extended; nuclear regulation if nuclear new
3.2 The Department for Work and Pensions
is proposing that the HSE should receive a 5% real terms cut in
its budget each year from 2008-09 to 2010-11. This is on top of
considerable staffing reductions in recent years. Since 1997,
the UK workforce has increased by around 9%. In addition the number
of premises that the HSE inspect has gone up by well over 20%.
Yet the HSE's workforce has shrunk from over 4,000 to its current
number of less than 3,500. Further cuts of 5% a year in real terms
for the next 3 years would mean that the HSE would have to make
further reductions in either accident or ill-health investigations
or the proactive work that helps to maintain them at their current
levels. If they go ahead with the proposed cuts then we will see
more injuries, more illness, and more being spent on medical treatment,
sick pay, benefits and compensation.
3.3 The TUC is concerned that, as a result
of the cuts changes are being proposed that could have a major
effect on the service that the HSE provides. We are particularly
concerned that the decision to reduce the number of offices and
transfer the vast majority of staff currently in London to Bootle
will have a devastating effect on the ability of the HSE to operate.
It is clear that any move to close the London head office will
lead to around 80% of Rose Court staff leaving the organisation
rather than move. Many of these staff are highly experienced with
a skills and knowledge base that the organisation needs to retain.
We hope that efforts will be made to minimise this loss and ensure
that the skills are retained.
3.4 It would be naive to think that the
HSE can simply absorb the cuts through slashing "back room
services". The HSE is already exceeding its efficiency plan
targets and has made huge cuts in recent years. However, there
is simply not the room for further reductions. The HSE is a very
labour-intensive agency because you cannot replace inspectors
with computers. The administrative cuts that have taken place
have already led to inspectors having less back up and having
to reduce the amount of frontline work they do. This has already
affected the service that the HSE gives. In the past 4 years the
number of inspections fell by 25% while the number of prosecutions
fell by 49%. It is hardly surprising that last year saw the highest
number of workplace fatalities in 5 years.
3.5 The business case for increasing resources
to the HSE is obvious. By preventing people becoming ill or injured
through work we can save billions of pounds through sickness absence,
medical costs and compensation. Yet the amount that the Government
gives the HSE is less than a third the amount that the state pays
out through the industrial injuries scheme. It just does not make
3.6 The TUC would like to see a considerable
investment made in safety with increased resources being made
available to both the HSC/E and local authority enforcement departments.
The benefits of such an investment would far outweigh the costs.
The Select Committee should be aware that more than eight times
as much is spent on compensating injured workers through Industrial
Injuries Disability Benefit that is spent funding the HSE. In
addition a further £1.4billion is spent on Employers Liability
4.1 The level of enforcement of health and
safety is both low and inconsistent. Figures for inspector numbers
in HSE can be misleading as many do no inspection, being in policy
jobs or purely management roles. There are more traffic wardens
in London than there are inspectors in the whole of HSE's Field
Operations Directorate for the whole of Great Britain. It is estimated
that the actual number of FOD inspectors is around 700 to cover
all the inspections, investigations and prosecutions for all manufacturing
(except chemicals manufacturing), the health services, education,
all local authority activities, Govt departments and agencies,
fire and police services, the defence industry and MOD, agriculture,
fairgrounds, domestic gas safety, utilities, ports and docks,
4.2 This means that the possibility of a
visit by an inspector is considerably low. Although Lord Robens
envisaged annual inspections, the current FOD inspected employer
is likely to get a visit, on average once every 10.8 years. In
fact the number of inspections has fallen from 116,652 in 1996-97
to 55,195 in 2004-05. At the same time the number of locations
inspected by FOD have gone up by over 20%
4.3 Most inspections are supportive, however
some are investigative. Unfortunately, under 20% of major injuries
are investigated, and under 5% of "over three day injuries"
are investigated. Injuries in traditional industries are far more
likely to be investigated than injuries in the service sector.
There are also considerable regional differences. We would not
however want reactive inspections increased simply at the expense
of pro-active inspections. We wish to see an overall increase.
4.4 There has been concern expressed by
a number of unions over the lack of contact with safety representatives
during inspections or visits, and often a lack of willingness
to share information with safety representatives.
4.5 The TUC also has concern over the levels
of enforcement activity instigated by the HSE. The number of prosecutions
has fallen from 1986 in 2001-02 to 1,141 in 2006-07, although
there was a welcome increase in the past year. The number of improvement
notices and prohibition notices has also fallen dramatically.
While we recognise that the priority for the HSE must be to prevent
injury and ill-health, we recognise that prosecutions are unfortunately
a necessary part of ensuring that the culture within workplaces
is changed. Given the limited resources available to the HSE we
believe that more use should be made of "blitzes" and
4.6 We also believe that the HSE should
be prosecuting in more cases where an employer is breaching health
and safety law, even is cases where no injury has been sustained.
This is particularly the case where bad practices can lead to
an occupational illness in the future. It is clear that the HSE
rarely prosecute for offences that can lead to disease as opposed
to immediate injury. If you look at the conviction figures for
2002-03 the three regulations which were used most frequently
for securing a conviction were the construction, work equipment
and gas safety regulations. Each led to over 85 convictions. Only
one person was successfully prosecuted under the noise regulations
and another one under the manual handling regulations. None were
convicted under the working time or VDU regulations in that year.
Yet it is breaches of these regulations that have led to the epidemic
of back pain, stress, hearing loss and RSI that we have seen in
recent years. In addition only 81 people were convicted under
the management regulations, which includes the requirement for
risk assessment, despite evidence of widespread non-compliance.
4.7 It is also of concern to the TUC that
no employer has ever been convicted for not fulfilling their duties
to consult with their workforce since the regulations were introduced
4.8 The TUC is aware that there is some
confusion relating to the enforcement of work-related safety on
the highways. Over a thousand deaths on the roadaround
a third of all road traffic deathsinvolve people driving
for their work (excluding deaths caused by those going to or returning
from work)four times as many as die in all other work-related
accidents combined. While the investigation of road traffic accidents
is a matter for the police, many accidents are a result of management
failings and need to be considered in that light. HSE should be
given the resources and the task of ensuring that employers manage
the risks of occupational road use in line with HSWA principles.
We believe that HSE involvement in this area would make a major
contribution to the Government's targets for reducing road traffic
injuries and fatalities.
4.9 We would remind the Committee of their
report of 2004, which stated "The evidence supports the view
that it is inspection, backed by enforcement, that is most effective
in motivating duty-holders to comply with the responsibilities
under health and safety law. We therefore recommend that the HSE
should not proceed with a proposal to shift resources from inspection
and enforcement to fund an increase in education, information
and advice." The Committee also expressed concern over the
low levels of investigation of incidents and of proactive inspections
and recommended that resources for those are increased. It also
called for a doubling in the number of inspectors.
4.10 The TUC is also concerned over the
type and levels of penalties available. For most offences only
a fine is possible. For some offences there is the possibility
of imprisonment but this is rarely used and is only available
for individuals while most defendants are corporations. While
we welcome the recent Corporate Manslaughter Act we do feel that
much more needs to be done to increase the penalties available.
The average fine for a health and safety offence is similar to
that for "fly-tipping". Last year the average fine was
£15,370, but if the small number of convictions of over £100,000
are removed the average is £8,723. This shows that the norm
is well under £10,000. The Government committed itself in
2002 to increase penalties for health and safety offences but
has yet to do so.
4.11 We also want to see more imaginative
penalties such as corporate probation and "naming and shaming"
orders available, as well as more use of disqualification for
directors. At present there is no legal duty on directors to ensure
that their organisation does not put the health and safety of
their workforce at risk. This is a major omission. While the Institute
of Directors has recently published, on behalf of the HSC, new
guidance for directors it is unlikely this will have any greater
effect than the previous guidance. While we recognise that many
company directors do take their responsibilities for health and
safety seriously many do not and until there is a statutory duty
on them to do so, as there is on individual employers, managers
and suppliers, then this will remain a major loophole.
5.1 We note that the Committee specifically
raises the issue of Occupational health and rehabilitation. There
is still a tendency to view occupational diseases and illness
as being a thing of the past, mainly related to industries such
as mining and heavy engineering. The reality is very different.
Despite huge advancements in technology and changes in the labour
market the editor of International Journal of Occupational and
Environmental Health has claimed "never in history has there
been so much occupational disease as exists in the world today".
Much of this is because of the emerging problems of new jobs and
new work methods.
5.2 175 million days of sick leave are taken
every year at a cost to the economy of around £13 billion.
Of these, the Government states that 36 million days are lost
because of ill health related directly to a person's employment.
The HSC was given targets in 200 to reduce the number of working
days lost by 30% by 2010. By now we should have seen a 21% reduction.
In fact the fall has only been 12% and in the past two years the
number has actually risen. Clearly this is a major issue and needs
considerable and concerted action over the next three years it
the targets are to be met.
5.3 Unfortunately there is a view amongst
many within the HSE that traditional methods of enforcement and
inspection are not appropriate when dealing with occupational
health issues. In fact there is no evidence to support this view,
mainly because there has been so little enforcement activity in
this field as outlined previously. However, when the HSE has taken
action, such an the enforcement action against a health trust
on stress, the effect was considerable and had a major and lasting
impact on the way that health trusts dealt with stress related
5.4 However, we do believe that much of
the work that the HSE has done is beginning to show results, especially
in influencing levels of musculoskeletal disorders. Unfortunately
this work is under threat by the significant under funding of
the Health and Safety Executive and local authorities. The recent
ill-health figures also show that the effect of this work will
only be sustained if complemented by further inspection and enforcement
5.5 The TUC supports the provision of Occupational
Health services and access to rehabilitation. At present it is
estimated that less than 20% of workers are covered by any kind
of basic occupational health support and only 3% provide comprehensive
support. However good occupational health services can improve
the quality of work, help assess, reduce and remove risks and
ensure suitable jobs and adaptations for ill or injured workers,
or workers with disabilities.
5.6 The TUC has always contended that the
UK Government is failing to meet its minimum legal duty under
the European Framework Directive, which requires all workers to
have access to preventative occupational health services. There
is a clear case for a legal requirement on all employers to provide
such a service. Following action by the HSE, an employment tribunal
recently ruled that a local authority was in breach of the Management
of Health and Safety at Work Regulations by not providing an occupational
health service for its employees.
5.7 The TUC also believes that access to
rehabilitation is vital. Currently access to rehabilitation primarily
focuses on serious injuries. However, there is some evidence that
rehabilitation can be extremely effective in relation to both
MSDs and also mild to moderate health conditions caused by stress.
Between them these two groups of conditions make up over 70% of
work-related sickness absence. They are also the major cause of
long-term sickness absence, whether or not work-related. Unfortunately
uptake of rehabilitation is extremely limited. There is no legal
requirement on an employer to even consider rehabilitation following
an injury or illness. We believe that this is a major defect in
the legal framework.
5.8 We are however concerned that much of
the occupational health agenda appears to be falling disproportionately
on the HSE. Their role must be in prevention. That is where their
expertise lies and where the real gains can be made. We believe
that much of the HSE's involvement in wider occupational health
issues relating to provision of services as opposed to prevention
has let to them being stretched to widely. It is important that
the HSE is clear what its role is and that issues around the management
of sickness and return to work are dealt with through the DWP
and DoH, although we do of course welcome co-ordination and cooperation
in this field.
6. DIVISION OF
HSE AND LOCAL
6.1 The TUC does not support any major changes
to the current regime however we do believe that the HSC should
exert greater control over the level of enforcement undertaken
by local authorities to ensure consistency and quality.
6.2 Overall local authorities enforce very
well, however, the TUC has concerns over the variability of enforcement
across the local authority sector, and the lack of resources and
support given by local authorities to this function. We are also
concerned over the very sharp fall in enforcement action by local
authorities over the past decade, although believe this has recently
7.1 The HSC is founded on the belief that
health and safety is best promoted through employees, trade unions
and Government working together. The tripartite approach has been
one of the strengths of the HSC. In addition research has shown
that in those workplaces where trade unions and employers have
a joint approach to health & safety there is a better safety
culture than in those without trade unions. The TUC would wish
the select committee to be aware that in those workplaces where
there is consultation and trade union recognition, the level of
work-related injuries is half that of workplaces with no union
recognition and consultation.
7.2 The TUC would wish to see changes to
the Safety Representatives regulations to make them more effective
and relevant to the present day. These include giving safety representatives
the additional statutory functions to inspect all premises where
they have members, and those of contractors. We would also wish
to see a duty on employers to respond to issues raised by safety
representatives, a duty to consult safety representatives on risk
assessments and greater clarity and enforcement of the employer's
duty to facilitate safety representative training and provide
7.3 After listening to evidence from the
trade unions, the 2004 Work and Pensions Select Committee called
on the HSC to revisit their proposals for new rights of consultation
for employees, including non-unionised workplaces, which had been
shelved in 2003. Despite a further consultation on the issue,
which resulted in overwhelming support for changes to the regulations,
the HSC has still not revised the regulations.
7.4 The TUC would wish to see the HSE use
trade union safety representatives as a positive force in improving
the safety culture within workplaces and, as part of their inspection
regime, automatically seek to ensure that employers are complying
with the HSWA and Regulations on consultation. We would also wish
to see more materials specifically aimed at Safety Representatives.
7.5 Tripartitism has also underpinned the
various Industry Advisory Committees which have been established
by the HSC. Some of these have been extremely effective in promoting
safety within the industries or sectors they cover. Unfortunately,
in recent years the commitment from the HSE to these bodies seems
to have waned with some Advisory Committees being wound down,
and others finding it harder to gain access to the support they
need. There has also been a trend towards diluting the employee/employer
interests on advisory committees, thereby undermining the principle
of tripartitism. The 2004 Select Committee also expressed concern
over the fact that the industry advisory committees, which have
considerable support from trade unions, and have been extremely
successful in reducing injury and ill health within a number of
industries, were being downgraded.
8.1 The TUC is concerned that the existence
of the Employment Medical Advisory Service is also under threat.
This service has dropped from 120 staff in the early 90s (half
doctors and half nurses) to the equivalent of seven full time
doctors working as medical inspectors and 25 nursing staff working
as occupational health inspectors. The TUC believes that proper
resourcing for EMAS is necessary to drive forward occupational
health in Great Britain and provide leadership to the system.
A fully restored advisory service, such as EMAS, could be effective
in providing incentives to employers to make occupational health
provision and will be able to provide the necessary advice to
employers, as parliament originally intended, when it was set
up under the Health and Safety at Work Act.
8.2 The fourth report of the Select Committee
on Work and Pensions specifically drew attention to reduced funding
for EMAS and expressed the view that this had considerably reduced
the capacity of the HSE to provide advice on occupational health
9. RESEARCH AND
9.1 There is no doubt that the quality of
materials published by the HSE is of a very high standard. Their
guidance is both extensive and very practical and compares favourable
with that from any other country, both for its authorities nature
and its accessibility. Their research was once considered to be,
by far the best in the world. Unfortunately cuts in the funding
available to HSL and a change in the nature of the research away
from "hard" research into more attitudinal surveys has
led to a fall in quality. The TUC is heartened by the steps that
are being taken to address issues of quality, but are still concerned
about the funding difficulties facing HSL, especially given the
general fall in research into occupational health more widely.
9.2 In addition, much of the guidance and
regulations are priced. This means that they are inaccessible
to one half of industry, the workers. Safety representatives are
volunteers who do not have the resources to purchase the materials
they need. The HSC did agree to place all material freely on the
web. A very forward-looking decision. Unfortunately that decision
is now at risk because of the funding difficulties within the
organisation. We hope that the committee will consider this issue.
The TUC wishes to place on record
its support for the HSC and the work it does.
The HSWA is generally robust,
but is undermined by a lack of enforcement.
The work of the HSE/C has been
considerably curtailed by a lack of funding.
Staff cuts and proposed office
moves will have a huge effect on the organisations ability to
The levels of inspection are
unacceptably low and inconsistent.
We need greater, and more imaginative,
The HSE needs to increase enforcement
activities on health issues.
The HSE should ensure that it
prevention remains its primary focus.
The division of enforcement
is generally acceptable.
The HSE/C needs to put worker
involvement and safety representatives at the heart of its work.
The role of EMAS should be improved.
There should be greater emphasis
on research as well as fuller access to regulations, guidance
and advice than at present.