Select Committee on Work and Pensions Written Evidence


Supplementary memorandum from DWP, January 2008

THE LEGISLATIVE FRAMEWORK

Is the health and safety regulatory burden on businesses proportionate?

  1.  The majority of occupational health and safety legislation is goal-setting, not prescriptive. This is designed to allow the action taken by businesses to be proportionate and specific to the risks involved. In many cases, the duty holder can also decide what level of record keeping is sufficient to manage the risks in their workplace. The inclusion of the phrase "so far as is reasonably practicable", in both the Health and Safety at Work Act and related regulations is designed to ensure that employers need not go beyond what is reasonable in the particular circumstances. The costs of compliance with legislation therefore vary according to size and the hazards inherent in the industry.

  2.  An issue sometimes raised about goal-setting legislation is that small businesses can have difficulty recognising what is proportionate action which can also lead to calls from duty holders for more prescriptive guidance from HSE. There is some evidence to suggest that perception of what is required by regulation is not always an accurate reflection of the legislation.[72] Therefore the costs the business attributes to occupational health and safety legislation may not be entirely due to regulatory requirements.

  3.  The respective roles of HSE and local authorities as the regulators and those who own and manage workplaces should not be lost sight of. HSE's approach, working together with local authority partners, is to target priority risks and sectors, and apply an appropriate mix of intervention and influencing techniques including inspection, enforcement action, communication, advice and support. A fundamental principle of the legal framework is that the responsibility for health and safety lies with those who own and manage workplaces. They must assess the risks attached to their activity and take proportionate action.

  4.  HSC and HSE endeavour to ensure that the cost of complying with health and safety legislation is proportionate to the risk. We are therefore working to minimise the costs to business through the initiatives in the HSC/E simplification plan and aim to reduce administrative burdens on business of health and safety legislation by 25% by 2010. As part of this commitment, HSE initiated its sensible risk management campaign and other complementary initiatives to make clear what is expected of businesses.

Are EU directives interpreted and translated by HSC into UK law appropriately?

  5.  HSE's policy is to implement EU directives without gold-plating and not to double bank. In 2006 Lord Neil Davidson QC, carried out a review of the UK's implementation of EU legislation, specifically to identify whether and where gold-plating of European regulation had led to additional burdens on business. The Davidson Review report did not identify any gold-plating of UK occupational health and safety legislation which required action. The only significant extension of EU legislation was to the self-employed, and this was deemed to be justified to ensure a level playing field for small businesses.

  6.  All implementation policy proposals are subject to impact assessment and public consultation. In addition, HSE has instigated a checkpoint process to ensure that negotiation and implementation of EU directives follows better regulation principles.

  7.  An example of HSE's work within Europe to ensure proportionate legislation includes the successful defence of the concept of "so far as is reasonably practicable" in the European Court of Justice (ECJ).[73] The ECJ's decision to dismiss the EC's application enables HSE to maintain its risk-based approach to protecting employees and others effectively, whilst allowing commonsense to be applied when deciding on what protective measures to adopt.

Are businesses given appropriate guidance by HSE on their obligations under health and safety law?

  8.  HSE produces two forms of published guidance: detailed, authoritative, formal guidance (including Approved Codes of Practice); and shorter information leaflets, which are usually free and downloadable. HSE guidance is widely praised. The latest (2006) MORI poll revealed the following statistics:

    —  On quality—80% of employers and 82% of CEOs said that the information they received from HSE was easy to understand.

    —  On quantity—63% of employers and 73% of CEOs said that the quantity of guidance they received from HSE was about right.

    —  Amongst those who have had contact with HSE in their work—89% of employers and 90% of CEOs agreed that HSE is a helpful organisation.

  9.  In a recent independent accessibility review of Government websites, HSE's website achieved full marks in all areas of accessibility.[74]

  10.  HSE recognises, however, that there remains a perception that health and safety legislation can be over-bureaucratic. It is to help address this that HSE has put in place its Sensible Risk Management initiatives. These aim to demystify risk management and help businesses see what "good enough" risk assessment looks like. In addition, the new impact assessment process now in place requires that the impact of all significant non-regulatory policy proposals are assessed to ensure that the costs of compliance for example with HSE guidance, are justified by the benefits.

What impact will the Corporate Manslaughter and Corporate Homicide Act (2007) have on businesses' approach to occupational health and safety?

  11.  Whilst there are no new duties under the Act, it is likely to spur boards to re-examine the health and safety performance of their organisations—and their role in it—since the offence created by the Act revolves around failures of senior management. New leadership guidance for directors, jointly published by the Institute of Directors (IoD) and HSC, will help boards and directors to ensure they have the right systems in place to manage health and safety effectively, thereby minimising the risk of their organisation falling foul of the Act.

  12.  Under the Act, juries may consider relevant health and safety guidance issued by the regulator. The new guidance may be relevant, depending on the circumstances of the case.

Are director's health and safety duties appropriately covered by voluntary guidance?

  13.  The new leadership guidance for directors does not stand alone.[75] It is just one aspect of the current arrangements, involving a mix of legislation, enforcement and voluntary guidance, which serve to focus directors' attention on their responsibilities for health and safety, and to influence their behaviour. In addition to the new guidance and the Corporate Manslaughter and Corporate Homicide Act 2007, the relevant provisions are:

    —  enforcement action against individual directors under the Health and Safety at Work 1974. If a health and safety offence is committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the organisation, then that person (as well as the organisation) can be prosecuted under section 37 of the Act; and

    —  the Company Directors Disqualification Act 1986, which may be used by the courts to disqualify an individual following the conviction.

  14.  HSC has given close attention to the issue of director responsibilities. In 2005-06, in conjunction with its stakeholders, the Commission considered the effectiveness of the current arrangements and, in particular, whether to recommend to Ministers that new legal duties on directors should be introduced. The discussions with stakeholders made clear that whilst there was broad consensus on the vital role director leadership plays in ensuring high standards of health and safety, there were strongly divergent views about the most effective means to ensure directors play their part: certain trade unions and victim support groups made a strong case in favour of further legislation, whilst employer organisations were largely opposed.

  15.  The Commission was unable to recommend further legislation to Ministers at that stage; however, it did take steps to strengthen the existing arrangements, specifically by:

    —issuing clearer guidance to inspectors on enforcement; and

    —  asking the IoD to lead work to prepare their new leadership guidance.

  16.  If these changes do not deliver, the HSC Chair has made clear that the Commission will revisit the question of further legislation. It will be a couple of years before the impact of the guidance and other changes can sensibly be assessed.

What influence does HSE have as a statutory consultee in local authority planning?

  17.  HSE is a statutory consultee on planning applications around non-nuclear, on-shore major hazard sites such as chemical plants, gasholders and large-scale petrol storage depots. European legislation requires member states to institute policies to:

    —  identify sites where dangerous substances above certain thresholds are present;

    —  ensure that measures are taken by operators to prevent major accidents; and

    —  limit the consequences of such accidents on the population in the vicinity of hazardous installations.

  18.  One way of mitigating the effect of major accidents is through land use planning measures, and this part of the European requirement is implemented in the UK through planning legislation developed by the Department for Communities and Local Government and devolved administrations in Scotland and Wales and administered by local authorities.

  19.  HSE provides safety-related advice to local planning authorities (LPAs) to inform their decision to grant hazardous substance consent or planning permission. HSE's advice is based on the most up-to-date scientific and technical knowledge, and takes account of the residual risk after all the preventive measures which the law requires have been taken at the installation.

  20.  It is for the LPA to make the planning decision, weighing local needs and benefits and other relevant considerations alongside HSE advice. The weight to be given to different, potentially competing, considerations is a matter for the LPA although it is guided not to over-ride HSE's advice without the most careful consideration. In the majority of cases LPAs follow HSE's advice. The present system for assessing risk around onshore, non-nuclear major hazard installations does not take account of societal risk, which is the risk that a large number of people could be harmed by a single incident. HSE's assessments are currently based on the concept of "individual risk" and consider risk and harm to people at each proposed development.

  21.  A consultation exercise was carried out by HSE on behalf of the Government between April and July 2007 on the principles for taking societal risk into account in major hazard control and land use planning. The results of the consultation and the Government's decision on taking this matter forward will be published shortly.

  22.  HSE is not a statutory consultee for proposed developments near nuclear sites, although planning guidance directs LPAs to consult HSE on the (rare) occasions when such developments are being considered.

RESOURCES

Does the HSE have sufficient resources to fulfill its objectives as the health and safety regulator and meet its PSA targets?

  23.  HSE has already indicated that it is no longer meeting the internal aim of 60% proactive work and 40% reactive (investigation and enforcement work) in those sectors which its Field Operations Directorate inspects.

  24.  Achievement of the PSA targets requires contributions both from HSE and the many stakeholders, including duty holders, representative bodies and trade unions.

  25.  Part of HSE's contribution is through preventative inspection which is a key intervention aimed at delivering the component of the PSA that seeks reductions in fatal and major injuries.

  26.  The ill-health and sickness absence PSA targets are more difficult for HSE and other stakeholders to tackle. HSE work in this area, both with direct intervention programmes and in developing standards, tools and awareness for employers and others to use, has generally been praised and, given the reversal in occupational health statistics in 2006-07, HSE would wish to intensify its efforts to achieve the PSA targets over the CSR07 period. However, in HSE's view, these efforts should not be funded at the expense of investigation and enforcement. Reductions in HSE's budget, not met from further efficiencies, would inevitably fall on its health and other programmes.

Does HSE allocate its budget efficiently?

  27.  HSE has taken significant steps to operate efficiently over the current (SR04) period and it is planning to build further on this position over the next Spending Review period.

  28.  HSE's current three-year economy and efficiency programme (2005-06—2007-08) will deliver over £50 million of improvements, over half of which are cash releasing, with the remainder delivering improvements in productivity. Some of this productivity simply helps HSE to stand still in the face of increasing demand and complexity (eg in legal and technical process). Over the past 18 months, HSE has made significant staffing reductions while generally maintaining key outputs through rigorous prioritisation and adoption of different approaches, eg adopting a risk-based approach to complaints investigation. HSE is now however at the limit of being able to prune further if it is to avoid serious impacts on its health and safety intervention programmes.

  29.  Within the efficiency programme, HSE has invested in Information & Communication Technology (ICT) as part of redesigning and reducing specific functions. For example, an IT-enabled HR system resulted in HR staff reductions of approximately one-third. HSE has outsourced functions that are not core parts of its work, eg IS/IT services (provided by Logica CMG), facilities management, payroll and pensions administration, telephone advice services, and the provision of temporary staff.

  30.  We have also considered alternative approaches and in 2006 commissioned a Fundamental Review conducted by an independent consultant previously employed by the Prime Minister's Delivery Unit. The resulting action plan is being implemented in order to direct more of HSE's staff to front-line activities, make better use of the scarce specialists we employ and to secure greater value for money from the services we buy in from others.

  31.  HSE's future plans on efficiency and effectiveness are focussed on redesigning significant elements of the way it operates including : the How and Where We Work programme aimed at making HSE's working arrangements for headquarters and the field estate more effective, while reducing estates costs and improving the standard of our poorer accommodation; developing a single point of contact for the majority of external telephone calls and requests for information from the public; and continuing to drive improvements in the time our front-line staff spend on direct health and safety interventions.

Are there areas of HSE's operations that require additional investment?

  32.  HSC/E's aim is to meet the wide range of functions and statutory duties that legislation and Parliament expect of it and to concentrate on achieving the 10-year "Revitalising" targets for reducing the incidence of fatal and major accidents, ill-health and working days lost. This scope inevitably means that, whatever HSE's budget, there will be competing priorities.

  33.  HSC/E strategy for workplace health and safety sets out how we and our partners intend to influence health and safety outcomes in the workplace. This is achieved by making optimum use of our resources through a mixed intervention approach of: targeting priority risks and sectors; applying appropriate influencing techniques; inspection; taking enforcement action; communication; and offering advice and support. We have no plans to change the principles and criteria in our Enforcement Policy Statement which is a major factor in determining the level of investigation and enforcement activity. Once this is taken into account, the scope of discretionary intervention is limited and this is the area in which judgements need to be made about competing priorities.

  34.  We believe of course that we can do more, genuinely valuable preventative work which our stakeholders tell us that they want. Our Plan of Work shows the judgements we—HSC/E—come to, with the Secretary of State's approval, to balance competing priorities for best effect within the budget provided.

INSPECTION, ENFORCEMENT AND PROSECUTIONS

What impact has the reduction in inspection rates had on standards of occupational health and safety?

  35.  In line with the Commission's strategy, HSE tailors its interventions to seek to secure the best outcomes. HSE continues to work proactively to prevent incidents from those industries that have the potential to cause significant harm—such as on-shore chemical and offshore—and to maintain our international obligations.

  36.  For other duty holders, there is not a cyclical plan of inspections—rather HSE targets proactive interventions on the basis of relative risk. During these proactive interventions, HSE inspectors carry out topic-based inspections to form an assessment of how well the duty holder is able to identify and manage their own risks. Topic-based inspections sample the control measures in place to manage specific areas of risk—for example, stress or falls from height. These areas are selected because our analysis shows controlling these risks should prevent statistically significant causes of accidents and cases of ill-health, so helping achieve the targets set by the Government.

  37.  During such proactive interventions, HSE inspectors will also deal with any matters of evident concern found during the course of any inspection. The follow-up to proactive interventions and any advice given or action taken is determined on a risk basis both in terms of whether to follow up a particular visit or, indeed, which matters to pursue. HSE and local authorities also intervene in those circumstances requiring investigation and possible enforcement action, including responding to complaints. For relatively low risk duty holders such as some small and medium enterprises, the strategy is to provide advice and guidance and other outreach activities such as communications campaigns rather than inspections.

  38.  Whenever and however HSE intervenes, the statutory responsibility remains with the duty holder to manage and mitigate the significant risks which its enterprise is creating for either its workers or those affected by the work activity. Some duty holders meet their statutory obligations of their own volition, others following encouragement by, or where necessary as required by, HSE.

  39.  Given the above, and as was argued at the evidence session on 28 November, HSE does not think it is possible to identify a direct relationship between the number of inspectors, the "inspection rate" and any proxy for occupational health and safety standards such as the Public Service Agreement. In addition, again as argued at that evidence session:

    —  A culture within an organisation which is dependent on an inspection to rectify health and safety deficiencies will not in the long term secure the necessary standards of occupational health and safety. Indeed, since such an organisation could not be relied upon to manage their own affairs, a pattern of permanently high-level external inspection would be created.

    —  Cultural change can result from many inputs, one of which, and an important one, is inspection—but this is not the only one HSE deploys.

    —  The Commission strongly supports the need for, and the delivery of, a mix of both proactive and reactive interventions.

  40.  It is also relevant that inspection—a necessary and an effective tool though it is—has a low multiplier effect being focused largely on the individual duty holder (although there can be a ripple effect flowing from inspection). Other complementary interventions of HSE have much higher gearing—for example, our Safety and Health Awareness Days.

Does HSE get the balance right between prevention and enforcement?

  41.  Our aspiration is to maintain a 60-40 ratio in our preventive: reactive caseload, as endorsed by HSC. However, in practice, the actual ratio reflects the work necessary to follow HSC's Enforcement Policy Statement[76] and arrangements made under it (eg incident selection criteria). There are also pressures (eg to maintain contact with relatives of people killed at work and to ensure that HSE investigates all reasonable avenues) that force our reactive time upwards. Newer developments, such as the need to assist the Police with prosecutions under the new Corporate Manslaughter and Corporate Homicide Act 2007, may further increase HSE's reactive time.

  42.  HSE continues to look for improvements in its investigation and enforcement processes to make them more efficient and effective. However, it is inevitable that if HSE's resources reduce, the balance of its work will shift towards an increase in reactive activity because of the requirement to continue to apply HSC's Enforcement Policy Statement and incident selection criteria. Only proactive work is discretionary.

Are penalties for health and safety offences proportionate?

  43.  Ministers and HSC have long maintained that fines for health and safety offences are generally too low. This view was supported by the Hampton and Macrory reviews.[77] Criminal penalties are an important way to express society's condemnation of serious failure to safeguard others. Penalties also promote compliance, and encourage preventive measures.

  44.  The current level of fines does not reflect the seriousness of the health and safety offences which come to court, nor are they sufficient to be a real deterrent, though there have been some encouraging fines in particular cases. In 2005-06, the average penalty per conviction, excluding railways, chemical, mining and offshore industries, was £29,997; but excluding exceptional fines of £100,000 or more, the average falls to £6,219. The level of fines is set by the Courts not by the HSE. HSE applies for costs in England and Wales and achieves approximately 95% cost recovery.

  45.  The Government remains committed[78] to raising maximum health and safety penalties when there is a legislative opportunity and as Parliamentary time allows. Despite four attempts by the Government, using Handout Bills (in 2000, 2003, 2004 and 2007), Parliament has yet to agree to pass legislation allowing for an increase in penalties. However, Keith Hill MP Private Member's Bill, the Health and Safety (Offences) Bill, will receive its Second Reading in the House on Commons on 1 February 2008. The Bill will extend the maximum lower court fine of £20,000 to most offences, including breach of regulations (the higher court fine remains unlimited) and will extend the range of offences which may attract a custodial sentence in both the lower and the higher courts.

Should the removal of crown immunity be a priority for HSE?

  46.  The lifting of Crown immunity from statutory health and safety enforcement is a matter for Government. It is a long-standing Government commitment that awaits a Parliamentary opportunity. HSC/E supports the lifting of Crown immunity.

  47.  The Government considered using the draft Corporate Manslaughter Bill to lift Crown immunity, following a recommendation by the Joint Committee of the Home Affairs and Work and Pensions Select Committees. While that option was not taken forward, the subsequent Corporate Manslaughter and Corporate Homicide Act 2007 does largely remove the Crown immunity that applied to the existing common law corporate manslaughter offence. This is welcome and consistent with Government and HSC policy to secure the eventual removal of Crown immunity for all health and safety offences.

  48.  The Committee may wish to note that:

    —  While HSE as a Crown body cannot itself be prosecuted or be subject to formal enforcement notices, it has no immunity from civil proceedings.

    —  Although MOD as a Crown body retains Crown Immunity from prosecution for all health and safety offences under the Health and Safety at Work Act (HSWA), it is bound by the duties. As in other Crown bodies, MOD staff do not share the organisation's immunity. MOD has agreed to abide by the terms of the General Agreement it entered into with HSE in 2001, which sets out the principles governing HSE's inspectorial relationship with it. That includes complying with Crown Notices and Censures in connection with health and safety failures, as set out in Cabinet Office Personnel Information Note 34. MOD is committed to the management of health and safety and has in place comprehensive safety policies and procedures endorsed by the Secretary of State. HSE accepts that MOD takes the Crown Censure process very seriously.

How effectively do HSE and local authorities interact in their inspection roles?

  49.  HSC's strategy emphasised the importance of effective interaction between HSE and local authorities (LAs). The arrangements in place at the time the strategy was being drawn up (in 2004) did not capture the full potential of HSE and LAs to work together. Accordingly, a programme was established to forge a more effective partnership between HSE and LAs so as to get the maximum impact from the regulators' combined resources. The last three years has seen a growth in the number of joint field activities and initiatives, both those directed at the health and safety targets and at developing the local arrangements to support the partnership. Steps taken include:

    —  HSE appointed field-based partnership managers—supported by seconded LA staff—to develop the partnership directly with the LAs in the regions, Scotland and Wales.

    —  New governance arrangements ensuring widespread local government involvement in policy and programme development.

    —  An interactive extranet connection, allowing LAs to exchange and access directly HSE and other LA's electronic legal, technical and policy information and other key support systems.

    —  Better access to common guidance, scientific and technical support, training and research.

    —  Joint planning between LAs and HSE on major work initiatives such as the Fit3 programme.

    —  A range of developments on enforcement, aimed at ensuring consistency and adherence to "better regulation" principles. These include the development of a common competency framework for all health and safety inspectors and a system of "flexible warrants" for LA and HSE inspectors.

  50.  A recent review has confirmed our belief that the partnership is fast becoming "the way we do business". The relationships which underpin this work, at the centre and in the field, have improved, though challenges remain: eg ensuring consistent risk-based approaches to inspection, investigation and enforcement practice, in regulating large, multi-site businesses effectively and efficiently, and in engaging local government effectively in strategic issues and policy development.

  51.  Effective partnership is a long-term endeavour. The introduction of local area agreements for all LAs in 2008 and the establishment of the Local Better Regulation Office provide further opportunities to ensure that HSE and LA health and safety regulatory activities are effectively joined-up, are better directed to having an impact on the Commission's priorities, and contribute to LAs' wider strategic objectives for safe, healthy and economically successful communities—but they also bring new challenges to be managed.

HAZARDOUS OCCUPATIONS

  Is HSE doing enough to improve health and safety standards in hazardous occupations, in particular:

    (i)  Is HSE doing enough to tackle the rise in fatalities in the construction industry?

    (ii)  Is HSE doing enough to tackle offshore health and safety risks in the oil and gas industry?

    (iii)  Is HSE doing enough to maintain health and safety standards in the chemicals industry?

 (i)   Is HSE doing enough to tackle the rise in fatalities in the construction industry?

  52.  HSE's Construction Programme is tailored to addressing the key issues, in partnership with the industry, to halt the rise in fatal construction-related accidents and build on the improvements already made over recent years. Central to the strategy underpinning HSE's Construction Programme are the objectives of ownership by the industry, leadership from senior industry figures and partnership working between those who create, manage and are exposed to risks.

  53.  As HSE noted in its earlier Memorandum to the Committee the goal of HSE's Construction programme is to work effectively with key stakeholders to improve health and safety standards. This goal presents particular challenges, not least of which is tackling the high fatal accident rate in the industry. At over four times the all-industry average, it results in the largest number of fatalities to workers of any industry sector in the UK economy. The fatal accident figures for 2006-07 show a rise from 60-77, an increase of 28% over the exceptionally low figure in 2005-06.

  54.  However, the fatal accident figures for the construction industry for 2006-07 need to be viewed against a backdrop of a buoyant construction industry. The housing sector, in particular has grown significantly, with housing output having increased by 97% between 2001 and 2005. The majority of the increase in fatal accidents in 2006-07 occurred in the house building and domestic refurbishment sectors, areas in which the HSE has already redoubled its efforts. The trend for fatal accident and major injury rates for construction over the longer term remains downwards.

  55.  HSE is continuing its work in support the framework of action agreed by stakeholders flowing from the Secretary of State's Construction Forum. HSE work and future plans in response to the challenge of increased fatal injuries in construction include:

    —  A highly successful inspection initiative in refurbishment over the Summer when formal enforcement action was taken at one in three of all sites visited.

    —  Repeating this successful initiative in early 2008.

    —  HSE's national communication campaign targeting slips, trips and falls in a number of industries including construction.

    —  Running regional seminars with the Home Builders Federation to share and disseminate health and safety "best practice".

Background on "Permissioning" regimes in the onshore chemical industry and all installations in the offshore oil and gas industry

  56.  The major hazard industries within the onshore chemical industry and all the installations in the offshore oil and gas industry are covered by "Permissioning" regimes. There are differences in the detail but the common principles are that the operator has to produce a safety case or report to set out the hazards created by their activities and to demonstrate that there are effective measures in place to manage or control the associated risks.

  57.  HSC policy with respect to permissioning is set out in its policy statement.[79] HSE assesses and analyses these reports and uses them, together with other sources of intelligence, to carry out risk-based verification by inspection. Permissioning regimes are an addition to the general framework of health and safety law. They are resource intensive for both the duty holders and regulators, and both these sectors attract charging of duty holders to cover the costs incurred by HSE.

  58.  The charge for regulatory activities in the onshore chemical industry and all installations in the offshore oil and gas industry is calculated by reference to time expended by HSE in carrying out its functions with regard to that establishment on any occasion and will include all relevant costs. £6.69 million and £8.05 million was recovered from industry in 2006-07 by HSE in connection with its Control of Major Accident Hazards (COMAH) and offshore regulatory activities respectively.

 (ii)   Is HSE doing enough to tackle offshore health and safety risks in the oil and gas industry?

  59.  The offshore oil and gas industry comprises around 300 installations ranging from unmanned gas platforms to large oil and gas platforms and includes floating production installations and drilling rigs. The North Sea is one of the most challenging and hostile working environments for oil and gas extraction in the world. It currently employs some 30,000 offshore workers—an increase of 50% in recent years.

  60.  In 1988 fire and explosions on the Piper Alpha offshore installation caused 167 deaths with only 61 survivors. The subsequent report of the Cullen Inquiry[80] made 106 recommendations to improve offshore safety. All the recommendations were implemented. Key recommendations included a thorough review and reform of offshore health and safety legislation and the introduction of a safety case or "permissioning" regime because of the inherent hazards involved in the sector. The accident/incident performance of the industry has improved steadily since Piper Alpha but recently this improvement has plateaued and it is clear that the industry needs to do more to improve its performance.

  61.  Many of the current challenges to safety in this sector are the result of under-investment in the long-term future of the industry during the 1990s. At that time oil prices were low, installations less profitable and the future of the industry on the UK Continental Shelf (UKCS) was open to question. This legacy—compounded by the fact that much of the infrastructure is at, or has exceeded its intended design life—has lead to significant operational challenges for the safe running of installations as the industry has increased activity levels in response to the increase in oil prices in recent years. This increase in activity has been mirrored worldwide with the consequence that there is a serious shortage of skilled, competent personnel, and of materials.

  62.  HSE has engaged with the sector to tackle these concerns. Since 2000 various HSE led programmes have focused on the key risk issues of process and installation integrity. These have seen reductions of over 40% in major and significant hydrocarbon releases which are key major hazard indicators. HSE has recently published a "state of the nation" report setting out its findings from the latter stages of this work.[81] This has set out a clear improvement agenda. HSE has engaged with the sector at its most senior level and secured acceptance of the challenge and firm commitments to address it.

  63.  HSE led programmes have focussed on the following key issues:

    —  Asset integrity: building on the priority issues identified in the recent report.

    —  Leadership: this is a key issue for all UK's major hazard industries. HSE will give particular emphasis on the role of senior management in demonstrating leadership in the management of major hazard risks and in driving cross-business and cross-industry improvement.

    —  Safety culture: to build on improved work force involvement together with hazard and risk awareness.

    —  Competence: A critical issue for the effective management and control of process safety risks and an area identified by the industry as essential for delivery of improved safety performance.

  64.  HSE will continue to work constructively with employers and employees of the industry and in particular to encourage good performers to share best practice with others but also to take strong enforcement action where appropriate.

 (iii)   Is HSE doing enough to maintain health and safety standards in the chemicals industry?

  65.  The UK's chemical industry comprises 9,000 or so sites including refineries, large chemical and pharmaceutical manufacturing plants, fuel/chemical storage and distribution sites, and warehouses. It has some 250,000 direct employees. Whilst all the sites are covered by the Health and Safety at Work Act, 1,100 of them are considered to present major accident potential and are therefore covered by a "permissioning" regime through the COMAH Regulations.

  66.  Much of the chemical industry plant in this country is old and has been adapted or modified over the years. HSE's intervention strategies are focussed increasingly on containment issues and the barriers (physical, technical and managerial) to failures in containment, which then have the potential or worse to cause major incidents. The performance of the sector is included in the HSE Public Service Agreement. There has been a reduction of 36% in notifiable dangerous occurrences over the last five years.

  67.  In addition, to increase the potential to learn from near misses and pre-cursors, rather than simply from incidents and accidents, we have worked with industry and sector bodies to promote development of leading process safety performance indicators to provide a greater degree of assurance that risks are being effectively managed and a more reliable indicator of performance. This work has received widespread acclaim—including in the Baker report into safety issues with BP in the US following the Texas City refinery incident. Key performance indicators at sector level have been developed for the fuel storage, chlorine and refinery sectors. HSE is now working to roll this out across the entire sector.

  68.  A key priority for HSE over the next few years will be to work with the industry to implement both specific and generic lessons learned from incidents at both the Buncefield fuel storage depot and the BP Texas City refinery—both of which have significant implications for the industry. Sites similar to Buncefield are continuing to implement a programme of agreed safety and environmental improvements HSE will continue to maintain a high level of momentum in addressing the remaining and any future recommendations made by the Buncefield Major Incident Investigation Board.

MIGRANT WORKERS

Are migrant workers more at risk of occupational accidents?

  69.  This question is difficult to answer with certainty at this time but HSE is working to obtain greater clarity. Analysis of fatal occupational accidents for 2006-07 shows that there was no excess of identifiable migrant worker fatalities.[82] Preliminary information from the Labour Force Survey for non-fatal accidents also suggests that migrant workers are not at measurably greater risk. However, the latter information should be treated with some caution as likely sampling difficulties in respect of migrant worker numbers in the UK, and their distribution across employment sectors, make comparisons with rates for indigenous workers difficult.

  70.  A current HSE survey asks employers for their view on whether their migrant workforce is at greater risk of accident and ill-health than other workers. We expect the results of this survey to be available during 2008. Additionally, HSE will be shortly tendering research that aims to identify all possible published and unpublished information on migrant worker risk, and to evaluate its methodological quality, in order to establish with greater certainty whether migrant workers are at greater risk than the indigenous workforce.

  71.  "Migrant workers" and "vulnerable workers" are overlapping terms, though not all migrant workers are vulnerable. HSE's work on ensuring the protection of both groups overlaps, and is collaborative with other agencies through the work of, for example, the `Vulnerable Workers Enforcement Forum' established by the Department for Business, Enterprise and Regulatory Reform (BERR).

Does HSE do enough to protect migrant workers from health and safety risks?

  72.  HSC regards protecting vulnerable (including migrant) workers as a priority and reviews HSE's work on this regularly. HSE's inspection activities on vulnerable workers are largely through its mainstream programmes, and have concentrated in key employing sectors. This will continue, and the scope will be widened to all industries from April 2008 (from agriculture, food and construction).

  73.  A good example of this approach is a project on slips and trips in floor cleaning. Inspectors ask specific questions about: the allocation of responsibility between labour providers (agencies) and labour users where relevant; coverage of risk assessments; and arrangements for overcoming language difficulties in information, instruction, training and supervision.

  74.  Local inspection projects for 2008-09, adapted to particular regional situations, will also include focus on vulnerable worker topics. To improve targeting of inspections HSE will continue to develop networks for sharing of information at local and regional level with other workplace regulators, intermediaries such as Citizens Advice, and nationally through fora such as the Construction Industry Advisory Committee Vulnerable Worker Working Group. When appropriate this will include joint working with other government regulators.

  75.  HSE's published guidance for both employers and workers sets out what duty holders need to consider when assessing the risks to vulnerable workers and in taking steps to deal with communications, risk perception and health and safety culture issues in respect of information, instruction, training and supervision. HSE produces targeted guidance in key areas such as a leaflet for food/agriculture SMEs; and advice on language issues and on employer/employment agency coordination on health and safety management is included in the (2006) revised edition of "Essentials of Health and Safety at work".[83]

  76.  In June 2007 BERR set up the "Vulnerable Workers Enforcement Forum" with a membership drawn from the CBI, TUC, Unite, UCATT, GMB, GLA, Employment Agency Standards Inspectorate and HSE, among others, and chaired by the Minister for Employment Relations. The Forum is considering the evidence about the problems faced by "vulnerable workers"[84] and whether new mechanisms or approaches to tackle workplace abuse are needed.

  77.  An important focus of the Forum will be on improving the interface between enforcement agencies. HSE is working with other agencies to improve collaboration as far as possible.

OCCUPATIONAL HEALTH

What must HSE do to meet its PSA targets for ill health and days lost per worker?

  78.  HSE's unique role is to encourage employers and others to prevent work-related harm—injury, ill health and consequent working days lost—to workers and others who may be affected by the activities. The latest health and safety statistics show the size of the challenge we still face—24 million working days lost with consequent loss of productivity for British industry. HSE accepted the challenge of the PSA targets but these targets were never for HSE alone to meet. We recognise that tackling health issues takes a broad, concerted and sustained effort in order to achieve measurable improvements.

  79.  HSE's current priorities in occupational health include: musculoskeletal disorders (MSD); stress with particular reference to the public sector; reducing sickness absence with particular reference to the public sector; and reducing work-related disease including occupational cancer.

  80.  To date we have targeted our ill-health work on a number of priority sectors. We are now formulating a multi-strand intervention plan to get back on track with occupational ill-health targets. The strands involve investment in partnerships with large employers, trades unions and cross industry groups to promote more effective health in the workplace; development of additional tools and standards for good practice on occupational health issues along the lines we have taken on safety; proactive inspection and enforcement particularly targeted at those employers who are failing to take action on preventable ill-health issues; communications to amplify the impact of the other strands; and research into areas of emerging concern, eg the link between shift work and breast cancer. It is important to deliver this as an integrated package.

Does HSE do enough to embed vocational rehabilitation in the workplace?

  81.  Effective vocational rehabilitation requires the interaction of a number of stakeholders with the prime responsibility lying with employers and insurers. The Government lead is with DWP rather than HSE given that HSE's primary focus is on prevention of workplace ill-health. DWP has convened a small but focused Vocational Rehabilitation Task Force chaired by Lord McKenzie whose remit is to:

    —  develop evidence of what works/identify effective interventions for the rehabilitation and return to work of employees suffering from work related stress and MSDs;

    —  produce advice, information and guidance for employers and others involved in procuring rehabilitation services on the what, why, where, when and how of rehabilitation;

    —  investigate and where appropriate make the case for provision of incentives/removal of disincentives to encourage a wider take up of rehabilitation services; and

    —  support and encourage contributions of others in developing competence and delivery standards of providers of rehabilitation services.

  82.  The Task Group has commissioned an evidence review with the Industrial Injuries Advisory Council (IIAC) on the effectiveness on the rehabilitation and return to work of adults of working age suffering from common health problems and from accidents.

  83.  The review will seek to answer the following specific questions:

    —  What rehabilitation and return to work measures are effective?

    —  When should these measures be implemented?

    —  What is the impact on effectiveness if these measures are delayed longer than six months?

    —  How cost-effective are these measures?

  84.  In conjunction with the evidence review, the task group has also commissioned work looking at how the market acts as an incentive or disincentive to the development and provision of vocational rehabilitation services.

Number of Inspectors Employed by HSE at 1 April 1998-1 December 20071
At April1998 19992000 20012002 20032004 200520062 200632007 1 Dec 2007
Total Inspectors1,437 1,4971,508 1,5341,625 1,6511,605 1,5301,543 1,4441,439 1,389
Of which are front line N/A1,269 1,3071,335 1,4581,508 1,4831,404 1,4211,328 1,3121,273


1  Figures are shown as full time equivalent (FTE) posts, rounded to the nearest whole number and include inspectors in HSE's Health and Safety Laboratory.

2  The bold column is for comparison only and includes inspectors transferred to the Office of Rail Regulation (ORR) on 1 April 2006.

3  The duplicate column for April 2006 excludes inspectors that transferred to ORR.

DWP

January 2008





72   Ipsos MORI poll "Attitudes towards health and safety 2006-Understanding Health and Safety" Back

73   The European Court of Justice's final judgement, on 14 June 2007, dismissed the European Commission's case against the UK for allegedly under implementing the Framework Directive, by use of the qualifier "so far as is reasonably practicable" (SFAIRP) on an employer's duty to safeguard his or her workers. See http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62005J0127:EN:HTML Back

74   SiteMorse Website Benchmarking Survey Report-see http://survey-beta.sitemorse.com/survey/report.html?rt=304 Back

75   IoD and HSC, "Leading health and safety at work"-see www.hse.gov.uk/pubns/indg417.pdf Back

76   www.hse.gov.uk/pubns/hsc15.pdf Back

77   Philip Hampton's report Reducing administrative burdens: effective inspection and enforcement (published March 2005). Richard Macrory's review Regulatory Justice: Making Sanctions Effective (published November 2006). Back

78   Revitalising Health and Safety strategy statement (June 2000). Back

79   HSC, "Our approach to permissioning regimes", see www.hse.gov.uk/enforce/permissioning.pdf Back

80   Department of Energy, 1990, "The public inquiry into the Piper Alpha disaster", Cm 1310, HMSO. Back

81   www.hse.gov.uk/offshore/programme.htm Back

82   In 2006-07 identifiable worker deaths made up 4% of total occupational fatalities (10 out of a total of 241), whereas best (Labour Force Survey-based and other) estimates suggest migrants make up approximately 5% of the UK workforce, and possibly more. Back

83   www.hse.gov.uk/pubns/books/essentials.htm Back

84   Government's Strategy paper, "Success at Work" defines a vulnerable worker as someone working in an environment where the risk of being denied employment rights is high and who does not have the capacity or means to protect themselves from that abuse. Back


 
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