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March 30, 2010

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Government still uncertain about merit of statutory directors’ duties

The Government has backed away from fully endorsing a recommendation for positive duties to be imposed on directors to ensure good health and safety management, but has vowed to investigate options for further reform in this area.

In its response issued yesterday (Tuesday) to Rita Donaghy’s report into construction deaths, the Government pointed to “considerable polarisation of opinion” on directors’ duties, with much of the opposition “based on the opinion that there is sufficient legislation already in place, the full impact of which is still to be seen”.

It highlighted evaluation work being carried out on the impact of the current voluntary approach, and has admitted that although “some of the findings are positive, in the absence of sufficient evidence that behaviours have changed significantly, the Government does accept that the options for further reform should be looked at”.

Non-legislative options it intends to consider include strengthening the Institute of Directors/HSE guidance with a range of sector-targeted guidance; and ongoing work to boost the competence of HSE inspectors when dealing with leadership issues and failures.

It has not, however, ruled out legislative approaches, and has pledged to look at, among other options:

  • imposing a general duty on directors by way of an amendment to the HSWA 1974 (a Private Member’s Bill has already been laid to this effect);
  • a self-standing regulation made under the Act, supported by an Approved Code of Practice; and
  • reviewing the threshold in the HSWA for prosecuting directors and other individuals for health and safety breaches.

Regretting that the Government was not more conclusive on the matter, UCATT reflected on the positives. Said general secretary, Alan Ritchie: “I am pleased that the Government recognises that voluntary guidance has not improved construction safety. It is essential that statutory directors’ duties are established, in order to ensure that rogue bosses who ignore safety laws leading to the death of a worker can be properly identified and punished.”

Regarding the question of whether to extend the Gangmasters Licensing Authority’s licensing standards to construction, the Government said that while further work on this needs to be done, responsibility for ensuring the health and safety of construction workers is already clearly stated as part of the Construction (Design and Management) Regulations 2007 and other health and safety legislation.

It concluded: “It would therefore appear that, from a narrow health and safety perspective, robust protections are in place.”

The Government also admitted that more needs to be done to address the issue of ‘bogus’ self-employment in the sector – which it recognises can discourage the reporting of unsafe practices and serious accidents. However, it countered this by underlining that extending the gangmasters regime to construction “could involve licensing in excess of 200,000 construction businesses”. Currently just 1200 licenses are issued in all gangmaster-related industries.

Alan Ritchie welcomed the Government’s recognition that bogus self-employment can lead to death and injury as “a crucial step forward”.

He added: “The Donaghy report identified that workers being supplied by employment agencies and gangmasters face a significantly greater risk of being injured, or killed while working on construction sites. Far too often these companies fail to provide adequate training or protection for their workers. It is these companies that need to be licensed in order to improve construction safety.”

Another recommendation in the Donaghy report – to extend the Building Regulations so that health and safety processes are included when considering building-control applications, or building warrants – also met Government resistance.

Its response outlined a number of initiatives in this area, including work towards a national framework agreement covering joint working arrangements between the HSE and the Building Control Alliance, which represents local-authority building control and approved inspectors in England and Wales; and an HSE evaluation of the CDM Regulations, which will consider how more use can be made of LA enforcement functions.

However, it stressed the limitations of what can be delivered through the Building Regulations, pointing out that, in many instances where fatal accidents occur, the type of work is not covered by the Regulations, or may be self-certified.

IOSH described the Government’s response as “positive and promising, but should go further”. John Lacey, chair of the IOSH Construction Group and vice-president, said: “We particularly welcome its support for embedding health and safety in the higher education curricula and its work with others to help ensure health and safety awareness and risk management are adequately covered.

“We believe education can help raise standards and ultimately save lives. This is why we’ve included it in our manifesto and are currently supporting the development of health and safety training materials for undergraduate engineers with the Inter-Institutional Group.”

He also welcomed the Government’s recognition of the needs of vulnerable groups and on establishing guidance for construction employers who wish to take young people on work experience, as it “chimes with IOSH’s ‘Putting young workers first’ campaign and manifesto themes”.

In all, the Government accepted 23 of the 28 recommendations made in the Donaghy report, including support of Common Minimum Standards throughout publicly-funded construction projects; mutual recognition between pre-qualification schemes; and support for greater worker participation.

Work and Pensions Secretary Yvette Cooper said she hoped the action set out in the response would improve the safety record in construction but warned “we must continue to work together – government, business, unions and workers – if we are to ensure that jobs in construction are as safe as any other”.

The full response is at:


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