Select Committee on Work and Pensions Written Evidence

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.


  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 deliver.


  1.  FMB calls for greater funding for HSE construction inspectors.

  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 accidents.

  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 businesses proportionate?

  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 unavoidable.

  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 PSA targets?

  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 concern.

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 additional investment?

  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 permanent service.


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 and enforcement?

  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 the inspectors.

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 the law.

  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 be tolerated.


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 limb.

  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 available.


Are migrant workers more at risk of occupational accidents?

  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 the problem.


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

January 2008

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