Memorandum submitted by the Federation
of Master Builders
We are writing in response to the call for written
submissions to the House of Commons Work and Pensions Select Committee's
inquiry into the operation and work of the Heath and Safety Commission
(HSC) and the Health and Safety Executive (HSE) and the proposals
to merge the two bodies. The Federation of Master Builders (FMB)
is the largest employers' body for small and medium sized firms
in the construction industry, and with over 13,000 members and
is the recognised voice of small and medium sized builders. FMB
is committed to promoting excellent standards in craftsmanship
and assisting builders to improve levels of building performance
and customer service. It is also committed to improving standards
in health and safety, to which end it works very closely with
the HSE at many levels.
UK CONSTRUCTION SECTOR
According to the Department for Business Enterprise
and Regulatory Reform (DBERR), the UK construction industry has
250,000 firms employing 2.1 million people, and contributes 8.2%
of the nation's Gross Value Added (GVA). Construction companies
provide employment for every skill level from labourers to architects,
as well as providing the opportunity to work for every size of
firm from family run businesses to major contractors. Its efficient
operation and competitiveness is essential to the fulfilment of
the Government's commitment to improve public services and infrastructure.
The delivery of new schools, hospitals, affordable housing, eco
homes, all depend on the success of the construction sector to
FMB KEY RECOMMENDATIONS
1. FMB calls for greater funding for HSE
2. FMB calls on the Government to provide
funding for Workers Safety Advisors to assist construction SMEs.
3. FMB calls on the HSE to make all of its
construction health and safety guidance freely available to download
from the Internet by the end of 2008.
4. FMB calls on the Government to reduce
VAT from 17.5% to 5% for all retrofits and refurbishment work
to encourage homeowners to use safe professional firms rather
than dangerous but cheap informal economy operators.
5. FMB calls on the Government to stop creating
new legislation in favour of making the provisions it has already
made, work more effectively with clear advice and better enforcement.
6. FMB calls for more research funding to
assess whether migrant workers are more at risk of occupational
The call for written submissions includes numerous
questions under each of the six general headings. Although the
FMB does not wish to comment on all areas identified by the Committee,
our written evidence tries to reflect this structure and answer
the questions posed where appropriate.
Is the health and safety regulatory burden on
1. This rather depends on what the HSE is
asking businesses to do and the extent to which they are already
doing it. It also depends on the size of the firm and the resources
that they have available for implementation. The disproportionate
impact of regulation on smaller firms is clearly noted in the
Philip Hampton's review of administrative burdens for HM-Treasury,
which refers to the conclusion in the NatWest survey that a firm
with two employees spends in excess of four hours per month per
employee more on government regulation than one with over 50 employees.
2. With regard to health and safety legislation,
our view is that any action that saves a life is worth taking.
As such it is very difficult to identify a regulation or a set
of regulations that is wholly unnecessary, as all health and safety
regulations have the aim of encouraging behaviors which could
prevent accidents and save lives. However, the quantity, complexity
and frequency of change of health and safety legislation is hugely
intimidating to small construction firms. When this is added to
the cumulative regulatory burden on issues ranging from taxation,
employment law and building regulations, to waste and sustainability,
many small construction firms are overwhelmed.
3. In terms of the proportionality of HSE
legislation in practice, the FMB regards the key problem as not
being so much to do with the legislation itself, but rather the
difficulties that small firms in particular experience with their
comprehension and implementation. In general HSE sponsored legislation
is as good as is practically attainable. The problems surrounding
comprehension and implementation of HSE regulations generally
arise from their interpretation, which in the main are largely
4. The difficulties originate from the need
to draft regulations to encompass every eventuality, and the need
to do so in such a manner that the wording will be sufficiently
robust to operate with credibility both on-site and in court.
The problem is that the requirements of the two are largely antithetical.
The need for the legislation to be robust in a court room environment
generally leads to long and complex regulations. These by their
nature are not easily understood, and especially not so by smaller
operators which usually lack the skills and expertise to comprehend
the legal language of legislation. As such, many smaller firms
generally rely either on consultants or Approved Codes of Practices
(ACoP) and other guidance documents, rarely if ever referring
directly to the legislation itself.
5. If a small firm uses an external consultancy
to translate legal requirements into practical actions, they run
the risk of being over sold, or over purchasing, assistance beyond
what is actually required. This can be due to the client and or
the consultant preferring to be over compliant rather than under
compliant. In some cases it can also be due to unscrupulous operators
exploiting the firm's ignorance of what is actually required,
for individual gain. This need for legislation to be translated
by a consultant into a set of practical actions increases the
cost of implementation, and can often lead to unnecessary actions
being taken beyond the initial intensions of the HSE.
6. The problem of misinterpretation leading
to unnecessary and unwanted bureaucracy is summed up in the long
standing complaint from HSE inspectors that businesses all too
often mistake quantity for quality when writing risk assessments,
safety policies etc and often miss the point of them in the process.
7. If a small firm uses ACoP and/or guidance
level documents directly without the assistance of a consultant
or in house safety specialist, no matter how well they are written,
there is always the danger of misinterpreting or misunderstanding
the intention of the document. This is particularly true in the
construction sector, given the often low levels of basic literacy
prevalent in the industry and highlights the problems with the
goal setting approach. Goal setting may be the right approach
for larger, more capable firms which have the resources and skills
to create imaginative and innovative solutions to health and safety
challenges on site but the approach falls down in the SME construction
sector which does not have the same available resources To this
end, the HSE needs to consider tailoring its advice and obligations
for small and micro firms in a more targeted way and the FMB is
already working with the HSE to help achieve this aim.
Are EU directives interpreted and translated by
HSC into UK law appropriately?
8. It is difficult to generalise on the
appropriateness or otherwise of the transposition of EU directives
into UK law. However, what is clear is that the EU is a major
source of UK health and safety legislation, accounting for 68%
of HSE legislation. It is also clear that that the burden placed
on business by health and safety regulation is considerable. The
HSE's own Administrative Burdens Measurement Exercise estimated
the total annual administrative cost to business contained in
all HSE legislation in force in May 2005, at £2.03bn. With
the HSEs own estimates suggesting that 77% of this burden is accounted
for by just 10 pieces of legislation, all of which apply to construction
and many of which implement EU directives, it is clear that the
end result of this legislative activity places an enormous legal
responsibility upon construction companies. Whether or not law
is the most appropriate way to achieve undeniably worthwhile health
and safety objectives, is another matter.
Are businesses given appropriate guidance by HSE
on their obligations under health and safety law?
9. Given that the Hampton report states
that 92% of firms want more information from regulators there
clearly is demand from business for more information The HSE already
has a suite of excellent publications and audio visual material,
some of which is already available on-line. We believe that all
HSE information should be made available in this way. Many of
its publications and other materials are of a high standard and
well respected, yet only available at a charge which acts as a
barrier between the potential user and possibly life saving information.
Aside from this being self defeating, we believe it is morally
wrong to enact law and then restrict access to information on
how to comply with it. While we accept the need for the HSE to
want to recover the costs of producing hard copies of advisory
materials, we strongly believe that all this information should
also be simultaneously placed on the HSE's website and made available
free of charge.
What impact will the Corporate Manslaughter and
Corporate Homicide Act (2007) have on businesses' approach to
occupational health and safety?
10. With regard to construction SMEs, we
believe that the new corporate manslaughter legislation will have
little additional impact as there was never any difficulty in
identifying the "guiding mind" of such firms under the
old legislation due to their uncomplicated management structures.
Does the HSE have sufficient resources to fulfill
its objectives as the health and safety regulator and meet its
11. It would not be appropriate for the
FMB to comment on the broad range of HSE's PSA targets. However,
from a construction point of view it is difficult to see how the
reduction in HSE resources can have anything other than a detrimental
effect on health and safety in the industry.
12. HSE's budget has not kept pace with
inflation since 2002, resulting in a considerable, real terms
reduction in its spending power. The effects of this have been
demonstrated in a series of cuts to HSE staff which have had to
be made in order for HSE to stay within budget. HSE has had to
make staffing cuts in 2003-04 and a further 250-350 posts were
to be lost by 2008 via natural wastage. The HSE will by 2008 have
lost around 17% of the staff it had in 2002 when comparing like
with like according to the TUC. A firm can currently expect a
visit from an inspector on average once every 13 years. The same
figure was once every seven years in 2001-02. FMB view the need
for further cuts in the DWP budget in the coming years with great
Does HSE allocate its budget efficiently?
13. Yes. The HSE demonstrates a considerable
degree of prioritisation on key problem areas through its core
priority programmes such as its campaigns on falls from height,
slips and trips, and manual handling. It also demonstrates this
through its more flexible responses to problems as they arise,
such as the recent spate of accidents involving tower cranes.
We therefore feel that HSE does allocate its budget efficiently.
However, we do not feel that their budget is adequate.
Are there areas of HSE's operations that require
14. Yes. The HSE should be provided with
sufficient funds to allow it to make all construction related
publications and audiovisual materials freely available to down
load from its website. HSE guidance gives life saving information
and the FMB believes that all HSE guidance products should be
made freely available in order to maximise exposure to it. This
includes publications currently charged for, such as the CDM ACoP
and the very highly regarded HSG 150, and DVD/CD ROM/ Video/Audio
material produced by the HSE such as Hard to Handle and HSE's
video guide to risk assessment for small firms. Although we accept
that the HSE should be able to recover costs for the production
of hard copies, there is no justifiable reason why electronic
versions cannot appear simultaneously on the HSE website.
15. We also believe the HSE should receive
additional funding to provide an increased number of inspectors
dedicated to construction. Furthermore, the HSE should also receive
funding for a national programme of Worker Safety Advisors, based
on the highly successful three year trial in construction, to
assist construction SMEs with implementing practical improvements
to health and safety on-site. This programme involved advisors
with extensive construction health and safety experience and knowledge,
visiting small firms and offering up to date, tailored and confidential
health and safety advice on site. Because the project was voluntary
and the advisors had no enforcement powers, both workers and employers
felt able to be more forthcoming about health and safety problems,
which enabled them to provide the remedial advice required. It
is a great loss to the industry that the money could not be found
to carry this excellent project on from its pilot phase to a more
What impact has the reduction in inspection rates
had on standards of occupational health and safety?
16. The reduction in inspection rates to
around one every 13 years, effectively gives out the message that
the Government is not serious about health and safety and that
it has no intention of enforcing its own rules. This gives the
informal economy the security it needs to flout the law with impunity
and put lives at risk in the process. This also undermines compliance
culture by giving dangerous operators a commercial advantage through
savings made in the cost of completing work by ignoring safety
rules. This makes the industry a more dangerous place to work,
both in the short term in the case of accidents, and in the long
term as occupational health issues become a more prevalent factor.
17. The FMB is unaware of any specific data
on the effect on occupational health of the reduction in inspection
numbers. However, we are of the view that HSE budget cuts force
inspectors into a more reactive role, and one which focuses on
the safety critical aspects of their role leaving less time for
the less urgent but no less important occupational health element
of their remit.
Does HSE get the balance right between prevention
18. No, the HSE does not have sufficient
staff to enforce the regulations across the industry. It is increasingly
the case that the regulations are only enforced after an accident
is reported. In these circumstances the only function of regulation
is to serve as a framework for punishment and the apportionment
of blame, as the preventative aspect has already self evidently
failed. Outside of this the HSE seemingly has to rely on a mixture
of good will and fear of prosecution for enforcement, neither
of which are prevalent in the informal economy. To its credit,
the HSE does what it can to advise and assist with prevention,
which is certainly an area on which it would like to do more,
however, budgetary constraints often prevent it from taking potentially
very useful measures.
19. The HSE tends to attend the scene of
an accident, investigate reports of dangerous incidents or practices,
or carry out spot checks, all of which are considered to be reasonable
enforcement activity. Unfortunately, diminishing resources are
increasingly restricting construction inspectors to this type
of work at the expense of the advisory/preventative work which
is often as appreciated by the employers as it is rewarding for
Are penalties for health and safety offences proportionate?
20. HSE does not have the resources to be
able to identify and confront the worst offenders, the vast majority
of whom operate in the informal economy. These operators are elusive
and transient by nature and are all too often departed by the
time and inspector arrives. The perceived lack of response by
the HSE to reports of illegal and dangerous practices by informal
economy operators, discourages reporting of offences in future
and undermines compliance culture. Ultimately it creates a strongly
felt sense of injustice, and perception that ultimately adherence
to the rules is being punished by loss of business to those who
under cut them with prices which can only be achieved by flouting
21. In terms of the proportionality of the
penalties, this is a very difficult question to answer as nothing
can compensate for the loss of a family member, and the use of
measures in a punishment capacity varies on a case by case basis
within the bounds of statutory provision.
Should the removal of its crown immunity be a
priority for HSE?
22. Yes. The idea that it is wrong an employer
to risk the lives of its workers is universal. No exceptions should
Is HSE doing enough to tackle the rise in fatalities
in the construction industry?
23. Construction is an inherently dangerous
industry. It routinely involves working at height and working
with heavy and or powerful equipment in a constantly changing
environment where danger can arise in seconds and where a moments
loss of concentration can literally result in loss of life or
24. This danger is acknowledged by HSE which
works well with industry at many levels and can generally be said
to be doing its best for the industry with the resources it has
Are migrant workers more at risk of occupational
25. There has been much talk of migrant
labour having an impact on the increase in the total number of
accidents and deaths on construction sites due to communication
problems and less stringent health and safety cultures in their
native countries but there is little hard evidence to substantiate
this claim. What evidence we have been able to find comes from
research commissioned by the Institute of Civil Engineers. Its
Migrant Worker Task Force (MWTF) recently commissioned research
by Loughborough University to look into the health, safety and
welfare of migrant workers on UK construction sites and its key
findings revealed that cultural and language barriers are a problem
as is the absence of union representation. In addition communication
was found to be weak between managers and migrants.
Does HSE do enough to protect migrant workers
from health and safety risks?
26. The challenges posed by the sudden influx
of migrant labour are not yet fully understood, and there is plenty
of scope for further research. However, the HSE has translated
a number of its publications into an array of foreign languages,
and has supported industry in its attempts to better understand
Does HSE do enough to embed vocational rehabilitation
in the workplace?
27. HSE is increasing its focus on occupational
health, and FMB understands that it intends to devote an entire
meeting of CONIAC (the CONstruction Industry Advisory Committee.)
to occupational health and the Constructing Better Health initiative.
Federation of Master Builders