Supplementary memorandum submitted by
Regulatory burden not disproportionate.
UK law enables employers to
avoid health and safety obligations.
Employers should ensure systems
"fit for purpose".
Voluntary guidance inappropriate.
HSE grossly inadequately funded.
Direct correlation between inspection
rates and fatalities.
Balance between prevention and
Need higher penalties and more
imaginative penalties ie remedial orders.
Greater protection for migrant
Thompsons is a firm of solicitors with 21 offices
across all three UK jurisdictions, acting at any one time for
tens of thousands of accident victims. For over 80 years we have
acted only on behalf of trade unions and accident victims.
We closely monitor legal developments relevant
to health and safety both for our individual clients, our trade
union clients and in the interest of representing, protecting
and advancing the position of accident victims and their families.
We support any measures that contribute to an improvement in health
and safety conditions in and out of the workplace.
1. Is the health and safety regulatory burden
on business proportionate?
The health and safety duties
of employers are not in our opinion disproportionate.
Effective health and safety
reduces time off work, improves efficiency and saves companies
money. It is an important and valuable investment. Thompsons is
a business and doesn't find it burdensome to ensure the health
and safety of our staff. Indeed it less burdensome than having
to deal with post-accident forms and procedures or the cost including
disruption and the effect on staff morale of occupational illness/
The Hampton Review of regulatory
inspections and enforcement (Reducing Administrative Burdens:
effective inspection and enforcement HM Treasury, March 2005),
referring to the Nat West 2003 survey of the amount of time spent
by small businesses on government regulation and paperwork, indicated
that for businesses of 50-250 employees the amount of time spent
was around one hour per month (15 minutes per week) per person.
For smaller companies employing nine persons it amounted to around
four hours per person per month (one hour per week).
These figures are not excessive,
may well be over assessments and are likely to include time spent
on all regulatory matters, including non health and safety matters,
such as Employers' Liability Compulsory Insurance renewal documentation.
If health and safety regulations
are more of a burden in some industries than others, then that
is because those industries are more dangerous. It is axiomatic
that any health and safety burden is proportionate to the safety
of that work and what is required to protect workers.
Easing health and safety regulations
will lead to more injuries and diseases and deaths at work. More
injuries would lead to more claims for compensation and as night
follows day there would be complaints from business and the insurance
industry (the very people calling for less regulation) of a boom
in compensation claims and there would be a rise in insurance
The complaint by the CBI, the
Institute of Directors (IoD) and other business organisations
that there is too much form filling may reflect a failure to properly
understand the requirements of the Health and Safety at Work Act
(HSWA) correctly. There is no need, for example, to produce multi
page risk assessments. Many of the health and safety documents,
assessments and advices to business that we see are, in our opinion,
inaccurate, misrepresentative and over bureaucratic.
We would question the quality
of work being carried out by some health and safety consultants
employed by companies. We support the concerns that have been
expressed by the Institution of Occupational Health and Safety
(IOSH) in the past concerning the lack of regulation of safety
consultants and advisers and consider that there should be minimum
Businesses too often ignore
and should be made to consider the benefits of working with trade
unions and union health and safety reps. Surveys have repeatedly
shown that trade union organised work places are safer workplaces.
Engaging with union expertise in health and safety at work can
considerably reduce the amount of work an organisation needs to
do to keep their employees safe. Full time union officials and
lay reps should be called upon to assist.
2. Are EU directives interpreted and translated
by HSC into UK law appropriately?
We are the only country in Europe to have insisted
that, in most cases, the laws carry a "reasonable practicability"
qualification. So an employer can avoid taking measures if they
can make out they believe them to be unnecessary or impracticable
or if the time they would take, or the cost, would be grossly
disproportionate to the risk.
It is far too easy for employers to avoid their
health and safety obligations using this get out.
Reasonable practicability also creates legal
uncertainty and confusion, results in more cases going to trial
and more complex trials over matters of legal interpretation.
3. Are businesses given appropriate guidance
by HSE on their obligations under health and safety law?
The HSE's website publishes clear guidance (and
other guidance literature), in Plain English. It is difficult
to see what further guidance would be appropriate.
Guidance should continually reinforce the message
to employers that complying with the HSWA is a simple process
(made easier and more effective where done in partnership with
trade unions) and that it is not necessary for employers to produce
multi page risk assessments.
4. What impact will the Corporate Manslaughter
and Corporate Homicide Act 2007 have on businesses approach to
occupational health and safety?
Too few employers appear to have given proper
consideration to the Corporate Manslaughter and Corporate Homicide
Act (CMCH Act).
Chief Executives and/or directors need to focus
on the more hazardous risks in their workplace. Juries will be
able to take into account any relevant guidance given to employers
so even IoD voluntary codes will effectively have a legal status
so any guidance relied upon, official as well as unofficial needs
to be considered by a company.
There is considerable misinformation developing
around the Act that will only confuse employers. A recent BBC
You and Yours programme trailed its feature on the Act
by stating that it would effect everything "from team building
away days to the office Christmas party". This is nonsense.
The media has its role to play to ensure there is proper understanding
of what the CMCH Act will (and won't) do.
We are also concerned at reports that NHS Trusts
are advising midwives that they will be unable as an employer
to represent any midwife accused of corporate manslaughter under
the Act. Again this is nonsense. It will not be the individual
midwife who will be pursued and in any event an employer will
be vicariously liable for their actions.
If employers take a negative attitude to the
CMCH Act and use it as an excuse to avoid their obligations to
their workers then the impact of the Act will also be negative.
Good employers have nothing to fear from an Act intended to avoid
employers killing people.
In our opinion, the CMCH Act offers an opportunity
for employers to re appraise their health and safety systems from
top to bottom to ensure it is fit for purpose. This does not mean
spending more time on health and safety but ensuring that what
is done is effective, efficient and carried out by persons who
are properly trained. Companies should be re appraising the role
played by senior management and directors of companies to ensure
there is a seamless health and safety process. Sadly, we see little
evidence of this at the present time.
5. Are director's health and safety duties
appropriately covered by voluntary guidance?
In a country where last year alone 2.2 million
people suffered from work related illnesses and 241 people were
killed at work it is difficult to see how a voluntary approach,
such as the code launched by the IoD (though in fact a repackaged
version of HSE guidance INDG 343 and 417 that have been in existence
for the past 10 years), is appropriate.
Voluntary guidance does not make workplaces
any safer. Statutory guidelines and laws provide teeth. Health
and safety is not a voluntary issue.
The recent IOSH survey carried out by Glasgow
Caledonian University (October 2007), which showed that the more
firms invest in safety the safer they get, highlights the inappropriateness
of a voluntary approach.
In our opinion, directors should be given specific
legal responsibilities for health and safety. Failure to comply
with codes such as the IoD code should be an offence. We consider
the lack of specific and positive safety responsibilities on directors
of companies to be a significant lacuna in health and safety law
and a major contributory factor to the occurrence of accidents
and illness in the workplace.
6. What influence does HSE have as a statutory
consultee in local authority planning?
N/A for Thompsons to answer.
1. Does the HSE have sufficient resources
to fulfil its objectives as the health and safety regulator and
meet its PSA targets?
As Thompsons stated in its evidence to the one-off
evidence session the HSE is grossly inadequately funded and unable
to fulfil its primary role of accident prevention.
There are not enough inspectors with the result
that there are not enough visits to workplaces meaning that employers
can pay lip service to health and safety, safe in the knowledge
that the chances of a visit is statistically remote.
Recent job losses and expenditure
cutbacks will significantly reduce yet further the capacity of
the HSE to be, in practice, anything other than reactive. Thompsons
understands from the trade union Prospect, which represents HSE
inspectors, that a 10% cut in staffing has resulted in the organisation
being underspent by around £25 million. We consider that
level of underspend when people are being injured and even dying
at work to be a scandal.
The effect of cuts has been
that initiatives started when the organisation enjoyed more funding
are either abandoned or run down, such as has happened with Workplace
Health Connect, a pilot confidential service designed to give
free, practical advice on workplace health, safety and return
to work issues to smaller businesses in England and Wales.
Lack of resources is in our
opinion likely to be a contributory factor to the massive under
prosecution of health and safety offences.
Documents disclosed by the Centre for Corporate
Accountability under a Freedom of Information request indicates
an under prosecution of offences by around 300%. The Department
for Constitutional Affair's own statistics show that the infrequency
of prosecutions means a magistrate is only likely to hear a case
involving health and safety regulatory breaches once every 14
2. Does HSE allocate its budget efficiently?
3. Are there areas
of HSE's operations that require additional investment?
The HSE's computer system COIN
is said by the union Prospect to be so complex and laborious to
operate that it effectively prevents inspectors getting out on
to sites. At a time when business is complaining of being overburdened
by bureaucracy it is hugely ironic that the inspectors of businessthe
HSE itselfare burdened with poor and bureaucratic systems.
Thompsons suggests that the costs and outcomes of the development
and implementation of COIN might usefully be examined by the select
We consider additional investment is required
Increase the number of inspections
Enable follow up inspections.
Increase the level of prosecutions.
Provide advice to the courts
and judges in connection with prosecutions under the Corporate
Manslaughter Act 2007, in particular with regard to remedial orders
(Section 9) whereby a court can make an order requiring a company
to take steps to deal with any deficiency as regards health and
safety, the organisations policies, systems or practices.
Judges have no experience of this type of power.
The act gives the court a virtually unfettered and unlimited power
to order a company to take whatever steps the court considers
necessary to avoid future deaths and accidents. This could involve
training in company structure and similar matters that require
specialist knowledge and advice. It is likely to fall to the HSE
to provide this advice and to monitor its implementation.
1. What impact has the reduction in inspection
rates had on standards of occupational health and safety?
There is a direct correlation between the level
of inspections and occupational accidents. More inspections and
follow up inspections ensure compliance with safety standards.
In the Republic of Ireland inspections have
risen by 13% and fatal accidents have dropped by 50%, In England
and Wales by contrast inspections have gone down and fatalities
have gone up.
Recent research by the construction union UCATT,
Bringing Justice to the Boardroom, shows that for every one extra
inspection there are three less injuries.
The HSE's own research carried out in 1998 (and
subsequently) indicates clearly that the prospect of enforcement
action is a key driver for large and high risk operations as well
as for smaller firms.
While increased inspections may require extra
resources they will pay for themselves as the cost of prosecutions
and enforcement is reduced and there is also a saving for the
state in health care and benefits to the injured.
2. Does the HSE get the balance right between
prevention and enforcement?
The current balance is wrong. Prevention is
always better than enforcement. The ratio of proactive to reactive
work should be 60-40.
It is clear from the HSE's own internal audits
that enforcement has been too low. There has been significant
underenforcement where offences have occurred. Despite the thousands
of cases Thompsons handles each year which result in significant
compensation being paid out as a result of common law negligence
and health and safety breaches, it is rare for there to be a corresponding
There are good and proactive employers out there.
However, their position and competitiveness is undermined by companies
which increase profitability at the expense of safety. It is common
knowledge in the construction and other industries that low tenders
mean reduced terms and conditions for the worker and reduced safety
Subcontracting is attractive to main contractors
if they can increase their profitability by bringing in others
to carry out work they have already successfully bid for.
The Committee may also want to consider the
issue of Section 37 of the HSWA which is ineffective in dealing
with large companies because of the need to prove consent, connivance
or neglect. It is a provision copied from the 1961 Factories Act
and as such needs urgent updating. Whilst employers, the self-employed,
employees and all other duty holders are subject to offences of
strict liability within the HSWA, s37 means that directors are
protected by a higher burden of proof.
This may explain, in part at least, why conviction
rates are so low.
3. Are penalties for health and safety offences
Whilst we see no benefit to fining a company
out of existence or fining a company to such an extent that it
cannot implement the necessary health and safety changes required
there should be much higher financial penalties and the introduction
of other types of penalty, as contained in the CMCH Act.
Average fines (2003-04 figures) in the magistrates'
courts are around £4,000 and in the Crown Court just over
£30,000. We consider these to be far too low.
We support the findings of the Hampton review
that penalties handed down by the Courts often do not reflect
either the severity of offences or the economic benefits a business
has gained from its non compliance. Low fines and the low level
of prosecutions and inspections has significantly undermined the
credibility of the HSE's enforcement role.
We consider that penalties should be twofold:
(i) They should deter and punish.
(ii) They should aim to achieve a change
in the way a company operates to avoid further offences and improve
health and safety.
In order to achieve these two objectives:
Fines should bear relationship
to the profitability of the company and the potential commercial
advantage it has been achieving across the board by cutting back
There should be a much more
imaginative and varied armoury of penalties to be applied to each
(e) publicity orders; and
(f) director disqualification.
The powers to deal with breaches under the HSWA
are essentially limited to fines. We strongly support pro active
powers such as that contained in Section 9 of the CMCH Act which
gives the court virtually unfettered powers to order companies
to make changes necessary to improve safety. We also consider
the naming and shaming power contained in the Act to be a positive
The penalties under the CMCH Act should also
be applied to the HSWA. And consideration should be given to providing
the courts with a comprehensive armoury of powers that can be
appropriately adapted to the company and offence in question.
4. Should the removal of its crown immunity
be a priority for HSE?
It is illogical that crown immunity has been
removed in respect of the CMCH Act but that it remains in respect
of the HSWA. This is a significant anomaly.
5. How effectively do HSE and local authorities
interact in their inspection roles?
Our submission to the one-off evidence session
was that the division of safety enforcement between the HSE and
local authorities is an anomaly.
Section 18 of the HSWA requires local authorities
to make "adequate arrangements" for enforcement. However,
separate funding by each local authority results in widespread
variation in performance and enforcement.
UNISON and the Centre for Corporate Accountability
produced a report in 2002 Safety Last: Under Enforcement of Safety
Law which showed that the HSE has little influence in ensuring
consistency between local authorities. The report identified significant
regional differences in inspection rates. These varied from local
authorities who investigated every incident to those which investigated
less than 10%.
More recent analysis since the establishment
of Health and Safety Executive/Local Authority Enforcement Liaison
Committee (HELA), showed that increases in accidents in certain
areas namely hotel and catering (30%), bars and clubs (80%), retail
and wholesale (15%) were significant (HELA 2005).
The LEA inspection and enforcement side has
suffered significant cutbacks over the past decade and it is only
in the last few years that resources have begun to increase and,
since the Hampton review, that steps have been taken to improve
the relationship and monitor performance.
We remain concerned at the plethora of enforcement
bodies and remain of the view that the possible advantages of
consolidation of all health and safety into one single body should
1. Are migrant workers more at risk of occupational
Migrant workers are more at risk due to the
often unlicensed status of their employers, the conditions they
work in and the circumstances under which they are employed, their
lack of confidence and understanding of their rights due to language
barriers and the fact that they are less likely to be trade union
members due to the transient nature of the work.
The reality of the employment experiences of
many migrant workers means that while there is much anecdotal
evidence of injuries at work accidents are rarely reported and
personal injury claims hardly ever pursued.
Thompsons is acting on behalf of the union Unite
for nine Hungarian workers who were recruited by unlicensed gangmasters
in Hungary to work for a UK employment agency supplying labour
to the second largest poultry producer in the country. They were
not registered to work by the agency until Unite intervened. As
unregistered labour they were unable to rely on key rights.
The conditions in which the Hungarians are working
are appalling. When the roof collapsed during heavy rain they
were made to continue working in soaking clothes. Some of them
have been injured at work and denied medical treatment. Accidents
are never recorded.
In another case Thompsons won compensation for
a Romanian student who suffered brain damage when she was flung
from an open back truck as it took her and other Eastern European
workers to pick beetroot in the West Midlands. They had been effectively
herded into the back of the truck and transported like livestock.
The young woman returned to her family and was likely to need
care for the rest of her life.
2. Does HSE do enough to protect migrant
workers from health and safety risk?
There is an urgent need for more inspections
of workplaces, particularly in the agricultural, food production
and construction industries where they are most likely to be employed.
There should be an amnesty for any unauthorised
worker who blows the whistle on unsafe working practices.
The HSE should work with the TUC and trade unions
to produce literature in different languages explaining migrant
workers' rights and the health and safety obligations of employers.
We consider the limitations of the Gangmaster
legislation to the food processing industry and agriculture an
anomaly. We are of the opinion it needs to be extended to all
1. What must HSE do to meet its PSA targets
for ill health and days lost per worker?
2. Does HSE do enough
to embed vocational rehabilitation in the workplace?
N/A for Thompsons.