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February 23, 2009

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Field Operations Directorate, HSE

The Field Operations Directorate is the engine room of the Health and Safety Executive, propelling it forward on the inspection, investigation, and enforcement highway. Tina Weadick talks to the new man in charge of keeping all pistons firing.

One of the first things that David Ashton, the HSE’s new director of field operations, did when he was announced in the post at the end of last year was send a memo to all FOD staff reminding them of the power and influence they have, and urging them to use them.

With a new HSE strategy on the horizon, and the regulator still smarting from criticism that the previous one was “too soft” on enforcement, Ashton is making it clear from the start that, this time, there will be no room for misinterpretation of the message and that justice remains firmly on the agenda. He says: “I think the HSE does a very good job, and the FOD is the engine room of that, so I want to protect the confidence staff have in their role and the organisation.”

That confidence has taken some very hard knocks recently. As well as having to constantly reassure stakeholders that enforcement is still very much part of its arsenal to reduce risk and tackle wrongdoing in Britain’s workplaces, the FOD has had to cope with staff losses (the number of front-line inspectors went down by 6 per cent last year) and, of course, the sustained attacks in the national media on ‘elf and safety gone mad.

On the latter point, Ashton is animated: “I really wish we could get off all the silly stuff because it’s starting to get a bit boring. There is a steady flow of evidence that there are still bad health and safety problems in this country, so if the media could just move forward and look at that side — the thousands suffering and dying from occupational ill health, for example — I think a destructive and malign influence would be removed at a stroke.”

He is, however, keen to ensure that the HSE is “a sensible regulator”, and has warned staff not to assume that every “silly” story is somebody else’s fault; sometimes it is the HSE acting in a disproportionate way. He explains: “I don’t think we should regulate against the grain. We should not be crusading at the extreme end of risk control, because people don’t want it and the risk doesn’t merit it.” One of his main priorities in his new role, he adds, is “to identify weaknesses in our current ways of working and help people to higher and better standards”.

The FOD is currently recruiting new inspectors to address a five-year downward trend (18 per cent of front-line staff have been lost since 2003) but Ashton admits that the 71 recruits due to join the Executive this month will only serve to maintain its numbers, rather than increase them to anything like the level that many stakeholders feel is necessary for the regulator to be able to do its job properly.

But he is pragmatic about the chances of this happening: “You can never give somebody like us enough resource to do absolutely everything there is to do. To investigate everything would mean diverting an impossibly large amount of public money into this one — albeit important — area. We are not the be-all and end-all — we are just one part of modern life.”

Consequently, he explains, the Executive cannot simply rely on enforcement as the only form of regulation and must use a range of techniques to influence people. He says: “On our front line we have staff who are not inspectors but safety awareness officers, who, for example, arrange safety awareness days, when you might get a few hundred people from agriculture, or construction to see some very practical demos of the sort of problems they have back in their workplaces, without the pressure of actually having to defend shortcomings, or be inspected in their own premises. A lot of people have benefited from that.”

Campaign trail

Ashton is also full of praise for the HSE’s campaigning efforts, where various forces within the Executive, such as communications staff, policy-makers and front-line inspectors, have grouped together around a common purpose to get messages across memorably and effectively — he cites the current ‘Shattered Lives’ campaign as a good example.1

Another campaign he likes is the drive in agriculture to get farmers to ‘make the promise — come home safe’.2 Launched in January the campaign centres around a ‘promise knot’ — a piece of green baling twine, which has been sent to some 70,000 farmers around the country, and which they are urged to attach to hazardous pieces of machinery to remind themselves to think about safety when operating them.

Although it is supported by the farming unions the campaign has been criticised for being patronising and a waste of money. One farmer, speaking to the BBC at the end of January, scoffed at the idea of tying the string to the ignition of his tractor and suggested a better use of resources would have been to provide first-aid training, or lone-worker alert devices for farmers.

But Ashton says this is completely missing the point. “Obviously, when you drive a tractor there are safety issues. There have been many incidents that illustrate exactly why you have to be competent in driving large farming vehicles.”

As for the farmer’s alternative suggestions of what the HSE could be doing, Ashton said it was interesting that neither would have any effect on prevention of incidents. He said: “Alarm devices, or first-aid training only kick in after something has happened!” He realises that some people will see the promise knot as “a gimmick” but is adamant that such things have a part to play in campaigning efforts.

Nevertheless, he is quick to point out that the HSE is not a health and safety promotional body: “We are a regulatory body that is enlightened and confident enough to be able to use these other techniques, underpinned by the very real threat of justice being enacted if things go wrong.”

The good, the bad, and the incompetent

But just how serious is that threat? Critics of the HSE have pointed out that most workplaces can expect a visit from the regulator just once in 14 years, so how does simply “informing and influencing” incentivise employers, particularly in the current economic climate, when the temptation to cut corners on things like health and safety is strong? Ashton defends the HSE’s approach, saying it has to have a spectrum of techniques and be clever about matching them to the situations in hand.

He explains: “There is no such thing as ‘an employer’. There are large, medium and small businesses, and there are some in control of major hazards and high risks, and others dealing with just minimal risks. Then there is the attitude dimension. Some employers are on the ball and don’t need persuading. They want to comply, accept the benefits of good health and safety, and understand the consequences of poor health and safety.

“Then you’ve got a lot in the middle, who are willing but not terribly well informed. These are ones who are saying ‘can you make it fairly easy for me because I want to do the right thing but I’ve a lot else to do as well’ — which is entirely understandable, I think. And then you’ve got the unwilling ignorant, and in that category I would put rogues and criminals, whose aim in their business life is to cut corners, undercut, dodge taxes, pay people the minimum wage, and so on.”

Ashton is very concerned about the rogue element but in the main, he says, he is an optimist. “I was an operational inspector and my abiding impression is that people are good. They do not wish, with the odd exception, to hurt people; they want the opposite. They want friendship among their workers, to run a good business, and do well for themselves but not at the expense of other human beings. What I saw on the front line was good-natured, in the main, but boy could it be incompetent!”

To act or not to act

So, how incompetent would an employer have to be before the regulator takes action, either in the form of an enforcement notice or a prosecution? A criticism that is often levelled at the HSE is that it does not act in nearly enough cases — a recent study3 by pressure group the Centre for Corporate Accountability and the Unite union, for example, found that only 10.5 per cent of reported major injuries are investigated, while investigation levels by sector range from 14.1 per cent in construction to 5.3 per cent in the services sector.

Ashton is well aware of how high feelings run on this issue and maintains that about 10 per cent of the HSE’s inspection contacts will result in enforcement action of some kind. His inspectors work within the framework of the Executive’s enforcement policy statement, which, he says, is “a judgement tool for guiding people towards presumed outcomes but doesn’t actually dictate what they should be. There is always room for professional judgement.”

Of course, there will be some situations in which there has to be a prosecution — for example, a serious or fatal injury that arose from the absence of a well-known safeguard, or where advice had previously been given and ignored. But, as Ashton points out, “that is the black end of a black and white spectrum — there are many shades of grey between the two”.

Such as? “Well, if you apply our judgement process and there is a presumption towards a prosecution, there are other factors that can be taken into account at that stage. If, for example, the duty-holder has a previous good record, and has responded very well to the incident that happened, such that it would be such strong mitigation that the court would wonder why you bothered, and that would be reflected in a token fine. It is not wrong for inspectors to take those factors into account.”

But he can see how this could seem like the employer is “getting away with it” and that justice is not being done, particularly if someone has been killed or injured?
“It is a legitimate point of view and should be under continuing debate. Of course, we empathise with bereaved families who feel they cannot achieve closure unless someone is punished. You cannot deny them the right to feel that way but there will be times when we cannot meet that need. The evidence isn’t there — the usual reason — or it might not be in the public interest to pursue a case. Families therefore have to rely on inquests, or meetings with us to explain why the outcome was the way it was.”

He accepts that people have different ideas about what should and should not be acted upon, and about what constitutes justice and fair punishment. He says: “I understand the arguments of those who say there should be far more punishment for serious injury but it isn’t something that the law can necessarily deliver, or that would always be appropriate to deliver. But if a breach we investigate was a significant cause of a serious injury our enforcement policy statement guides us towards a prosecution outcome and we take that.”

In proportion

Proportionate use of enforcement powers is another much-debated topic — albeit mainly in terms of excessive reactions and OTT approaches rather than under-use. According to Ashton, proportionate use means “you are neither turning a blind eye to something that will persist unless you take formal action, nor are you being heavy-handed where the notice or prosecution served no beneficial purpose”.

He claims that, in the vast majority of the HSE’s cases, people plead guilty — “they realise it’s a fair cop and they are punished accordingly” — but even those cases that are defended are a measure of success. Ashton explains: “If we always won every defended case, you would think we were being too cautious, or disproportionately lenient. If people got the impression that the HSE ‘flew a kite’ sometimes with its prosecutions — which we absolutely don’t — and they figure they may as well plead not guilty as they’d have a good chance of getting off, then I think we’d have gone the other way: we’d be being disproportionately heavy-handed, or technically incompetent in gathering evidence. In that sense I agree with [HSE chair] Judith Hackitt’s view that a modest proportion of cases being successfully defended suggests we are getting it about right.”

Ideal world

Ashton knows he — or the HSE — is never going to please all of the people all of the time but as long as his staff are out there inspecting, investigating, and using the range of tools and techniques at their disposal to prevent harm and breaches of the law, then he is satisfied that the role of regulator is being fulfilled as it should be. If he were to be given a magic wand, though, what would he use it to achieve?

“I’d make everybody understand that the business case for managing health and safety is right, convincing and compelling. If people actually understood the business rationale for taking health and safety seriously, they wouldn’t harm their business or their employees, cut corners, end up in jail, and so on. And if that light came on it would bring with it a strong following wind, which would blow away a lot of the silly nonsense about ‘elf and safety.”

Above all, he would imbue every individual with “a decent measure of common sense” so they would look after themselves and others, and “not make things more difficult by compounding their employer’s ignorance or incompetence with their own foolishness”. If people don’t use their heads when faced with everyday risks, he shrugs, “we are beaten before we start”.

With the advent of the new HSE strategy, there will be changes in the way the regulator goes about its role, and the future should see the health and safety ‘sector’ as a whole moving in new directions. But while all of this is welcome and exciting, Ashton remains focused on the here and now.

He concludes: “Day to day, we deliver an important service. We are at the dull but worthy end of business life, and there always will be an image problem for health and safety. But, in a way, health and safety should be boring — because if it’s not boring then it’s dramatic, and that means something has happened that we’d all rather hadn’t.”

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Tina Weadick is editor of SHP.


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