Select Committee on Work and Pensions Written Evidence

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 and safety.

  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.


  1.1  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 world—the 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.


  2.1  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 failures.

  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 build proceeds.

  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 sense.

  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 Insurance.


  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, and others.

  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 targeted prosecutions.

  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 in 1977.

  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 road—around a third of all road traffic deaths—involve 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 issues.

  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 activity.

  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.


  6.1  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 been addressed.


  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 information.

  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 issues.


  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 deliver.

    —    The levels of inspection are unacceptably low and inconsistent.

    —    We need greater, and more imaginative, penalties.

    —    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.

January 2008

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