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November 28, 2011

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Löfstedt: Government vows to restore clarity to health and safety regime

The Government has announced an immediate consultation on the abolition, consolidation and further review of large numbers of health and safety regulations and aims to remove the first rules from the statute books within a few months.

The announcement follows the publication today (28 November) of Professor Ragnar Löfstedt’s review of health and safety legislation and the Government’s response.

A major change is the establishment from 1 January of a new challenge panel, which will allow businesses to get the decisions of health and safety inspectors overturned immediately if they have got it wrong. However, a DWP spokesperson confirmed to SHP that this is the Government’s interpretation of a specific recommendation in the report, which made no mention of inspectors’ decisions being challenged; rather, Professor Löfstedt proposes that the Government look at introducing a challenge mechanism that allows for cases of incorrect and over-application of health and safety legislation to be addressed.

In general, Prof Löfstedt found that the problem lies less with the regulations themselves and more with the way they are interpreted and applied. Nevertheless, noting that the sheer mass of laws is a key concern for businesses, the report recommends that the HSE undertakes and completes a programme to consolidate sector-specific regulations by April 2015.

In supporting the recommendation, the Government said that, combined with ongoing HSE plans, the consolidation programme would reduce the number of health and safety regulations by more than 50 per cent.

The HSE has also been told to draw up proposals for changing the law to remove health and safety burdens from the self-employed in low-risk occupations, and whose activities represent no risk to other people. The Government said this would bring Britain in line with other European countries and will free around 1 million people from “red tape without impacting on health and safety outcomes”.

It also insisted that where activities of self-employed people could pose a risk to themselves or others – for example, in the building trades – health and safety laws would continue to apply.

Very few laws are to be revoked, but those identified as strong candidates for the scrapheap include the Notification of Tower Cranes Regulations 2010 – because there is no evidence of quantifiable benefits to health and safety outcomes – and the Construction (Head Protection) Regulations 1989 – because they duplicate the responsibilities set out in the PPE Regulations 1992.

The review also recommends amendments to a number of regulations, including: the Health and Safety (First Aid) Regulations 1981 – to remove the requirement for the HSE to approve the training and qualifications of appointed first-aid personnel; RIDDOR 1995 – to provide clarity for businesses on how to comply; and the Electricity at Work Regulations 1989 – regarding the regularity of PAT testing.

In addition, to provide further clarity, especially for smaller businesses, the HSE is recommended to review all its Approved Codes of Practice, and to have completed an initial review phase by June next year.

The role of the HSE in relation to local authorities should also be significantly strengthened, says Professor Löfstedt, not only to address inconsistencies in enforcement but also to ensure it is targeted at workplaces that present the highest risks. 

Despite all this extra work sent its way, the HSE said it would meet the timescale for completing all recommendations for which it is responsible. However, asked if the regulator will be given more resources to carry out its expanded role, a DWP spokesperson said it could not comment on budget issues at present.

Professor Löfstedt said: “A transfer of responsibility to HSE may risk losing the synergies with other local-authority enforcement responsibilities but it will ensure that activity is independent of local priorities and concerns and clarify the distinction between health and safety and other regulatory issues, such as food safety and environmental protection. This will, in turn, provide greater assurance and consistency for businesses.”

On Europe, the Professor found no evidence of gold-plating but conceded that the scope for changing health and safety regulation is severely limited by the requirement to implement EU law. His report nevertheless recommends that the Government works more closely with the European Commission – particularly during the planned review of EU health and safety legislation in 2013 – to ensure that both new and existing EU health and safety legislation is risk-based and evidence-based.

Finally, while recognising that the Government is in the midst of undertaking an overhaul of the civil justice system, the review also says the status of pre-action protocols needs to be clarified and strict liability provisions should be reviewed. The Professor found that, often, employers are encouraged to settle compensation claims if all the paperwork related to pre-action standard disclosure lists is not in place, regardless of their overall compliance record and despite the fact that minor non-compliance should not be viewed too strictly.

IOSH said it supported the streamlining and simplification of regulations but is keen to find out how the Government intends to reduce the number by half without increasing the risks to workers and members of public.

Speaking at the launch of the review in Whitehall this morning, the Institution’s chief executive, Rob Strange OBE, said: “We are also concerned about the proposed exemption of self-employed people from health and safety obligations. This approach seems to contradict the development of a more risk-aware society, which the report is keen to promote.”

The TUC described the report as “a missed opportunity” to consider positive steps to improve Britain’s health and safety record.

Its general secretary Brendan Barber said: “There is little doubt that removing the self-employed from the regulations will increase their risk of illness and injury and lead to a rise in the number of bogus self-employed in sectors like construction.”

Acting general secretary of UCATT George Guy added: “This proposal from Löfstedt would be disastrous if implemented in the construction industry. Workers would not know if they were covered by safety legislation. While, companies would try to divest themselves of safety duties, by increasing the number of false self-employed workers. Already construction companies all too often fail to comply with basic safety legislation and this proposal will make a bad situation far worse.”

EEF, the manufacturers’ organisation welcomed the report, not least the call on the Government to take action at a European level.

On the challenge panel, the body’s head of health and safety, Terry Woolmer, added: “This is a welcome step which will allow businesses to get the decisions of health and safety inspectors overturned immediately if they have got it wrong. However, it is unclear how this will work alongside the existing appeals process for enforcement notices, or the intended appeals process to be set up as part of HSE’s proposals for cost recovery and ‘fees for intervention’. Perhaps more thought is required before this is implemented.”

To download the full report, Reclaiming health and safety for all: An independent review of health and safety regulation, go to: http://www.dwp.gov.uk/policy/health-and-safety/#review

For more reaction on the report, click here.

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Audrey

There are apx. 200 pieces of legislation relating to roads, transport, driving and vehicles on public road. (best guess). How come we all get by without constantly fretting about the “burden” these create for drivers and road users everywhere? The nub is, there are only about 15-20 main ones. And few are aware of the existence of these, let alone ever read one. We have a very effective and well written “Highway Code (of practice)” that’s why. Distills key points into one handy book. Job done.

Philippa

I think some poeple are missing the point that HSE and LA’s are enforcement officers not consultants! We do issue advice where we can and have the comptetence do so but ultimately it is for businesses to be competent at what they do and not to put their employees at risk.

Ray

Clearly the Government are not satisfied with Professor Lofstedt’s excellent report and wish to go further – what a surprise. A challenge panel? Enforcement Notices can be challenged as it stands, however it is the HSE inspectors who are experts in this field, not employers or anyone else on their behalf.

The consolidation programme will reduce h&s regulations by more than 50%…in your dreams.

Ray

HSE inspectors are human, they make mistakes just like the rest of us from time to time. I would still rather rely on the inspector’s opinion than an employer or some other appointed quango.

I also agree that law enforcement is below what it should be. Prosecutions have seriously declined in recent years by both the HSE and LAs, simply because they cost a lot of money and only a small percentage is awarded back to the regulators by the courts. However, enforcement decline is another matter.

Ray

It’s all too easy to criticise, but I’ve come across health and safety colleagues who find it difficult to string a few coherent words together and complete a suitable and sufficent risk assessment.

The problem here is that everyone has a different opinion how the law should be applied in any given circumstance. This applies to clients, employers, employees…and yes, the regulators – it’s not a perfect world.

Rob

I seem to be out of step with ‘Dave’. I agree with Löfstedt , it is the way the regs are interpreted that causes a burden to business. We`have far too many ‘professionals’ trying to eliminate all risk from the workplace, rather than concentrating on the significant ones.
If we start removing laws from the statute book it will simply open the doors to the unscrupulous employers once again to cut even more corners.

Rob

Gary has hit the nail on the head. Far too many people, practicioners as well as the HSE/LA do not seem to understand that our role is predominantly about Managing the Risks that employees find themselves facing.

What we need to do is to remove the ‘risk averse’ managers and box ticking pen pushers who want to see documented evidence of every conversation if it had a safety conotation

Safeteenet

I may be ‘old’ but haven’t we been here before – the 1980’s I believe. In reality very little changed because the Eu had ‘adopted’ HSWA 74 and incorporated its principles into EU Directives. Since the self employed are supposed to become exempt I guess we, the taxpayers, will have to pick up an even greater bill for accidental injury than we do at present as they won’t have the resources of an employer.. Whatever happened to the principle of he who takes the risk pays for all its consequences?

Stephen

Small steps on the road back to sensible safety, and not before time. it is also time to look within
Unfortunately IOSH doesn’t promote good H & S, as a member’s only organisation it churns out people with a NEBOSH certificate kidding them they are H & S professionals, when they haven’t even started to learn. What we need is an organisation led by good practical people who are interested in promoting H & S, and not just themselves. Currently David Cameron is right. H & S is stiffling busines

Stephen

I would disagree that HSE inspectors are experts, my dealings tend to show that the youngsters coming straight into their career path, and some older ones too, like to hide behind their warrant card too much some even only hold the NEBOSH CERT. safety expert? far from it, a million miles from it actually.

Stephen

i personally dont expect an LA inspector who deals with “softer” industries to go on site and give an opinion on heavy plant and machinery, likewise i wouldnt visit a hair salon and give advice on the risk in applying false nails.its about knowledge and competence.
Yet i have witnessed an hse expert, a chartered engineer, giving evidence in a fatality heavily criticised not only for his lack of knowledge of H&S but also his knowledge of his field of expertise!!! They are the enforcers??

Stephenh

its a very feeble and lame excuse saying “hse inspectors are human”, their mistakes cause financial stress as well as business dispruption and like all public servants they are bnot accountable to a board of directors for their misdemeanours.

Nigel

I fear you are correct. All rather depressing really!

Martinsempers

I think we’re missing the point here. Lofstedt’s report matters not a jot. This is about scrapping H&S, not “streamlining” or “improving” it, as the misguided IOSH rep commented. The Tory’s want rid of our industry sector pure & simple. It upsets their funders, lobbyists & supporters. To view this as anything other than the first volley in the looming battle is naive. This report & Lord Young’s before it, will be edited to prove whatever they want it to & the press will back them all the way…

Major

I have been there Paul and seen it.

It was a fatal accident prosecution (victim decapitated) .

The defending barrister made the Specialist HSE Inspector look inadequate.

Worst of all, a criminally culpable employer got home free off scott free

Bob

It would be interesting to know which of the 7 individuals will be persued in the event of adoption of a proven unsafe system of work post accident / incident?

When constructing Wembley Stadium we were accused of an insufficent RA post major accident. The said RA had been approved by the P.C.

I myself had never seen such a usless RA and stated such under PACE.

I also pointed out that the P.C. had approved said RA, thererafter they persued the P.C. as well as us.

Moto: Beware the approver

Gary

Your statement ” ultimately it is for businesses to be competent at what they do and not to put their employees at risk” is frighteningly wrong, wrong, wrong! By your post you seem to be either HSE or LA.

DO YOU NOT GET IT THAT IT IS ABOUT MANAGING RISK? Employers will always put employees “at risk”. The question is, is the risk assessed and managed adequately?

Jkirby

I think the big problem at the moment is the way that the HSE interpret the Management Regs on the ground and that is what drives the burden – HSE are not consistent between their aspirations, as declared by Judith Hackett and others, and the methodology employed by their inspectors which also lack consisitency from one HSE office to another HSE office.

Jmaynardcsp

I send you condolences from the USA. I saw the comments made by your Prime Minister. The guy is a total ass. He must be George W’s long lost twin brother. I hope that you will not have to put up with that dufuss for 8 years like we had to with W.

Clearly he does not understand that effective safety performance results a reduction in money wasted in unproductive accident expenses. Business is actually the winner as are the employees.

Chin up, he will be on the streets eventually!!

Jonnyb

Are you suggesting businesses should be incompetent at what they do and should needlessly put their employees (and others) at risk?

…Okay, maybe the post was poorly worded, but I’m not following you here either Gary.

I understood Pip’s sentiment to be “the person creating the hazard must manage the risk”.

Kenpatrick

Well put Michael, together with the comments of Massimo this encapsulates the problem. I wonder if the solution is a national training standard for Risk Assessment? it is a source of puzzlement to me how we got from the EU directive and the Management Regs to the RAMS

Lorraine

On the contrary, despite clear legal process, I have experience of the HSE failing to discharge their enforcement duties correctly at times. The current appeal process is then via an employment tribunal, which does not comprise enforcement law specialists either. Having seen both sides of various coins in my career, a warrant does not an expert make.

Lorraine

I agree to err is human – unfortunately if I or my colleagues make mistakes, someone could potentially get hurt, and my employers then also face the consequences with the HSE. Whilst I have met some very pragmatic and practical inspectors, who have helped us, others are neither, leaving us to seek expensive legal advice and pick up the pieces. Independent regulatory review is nothing new to many other enforcement bodies. I think it is who and how it is done that is key here, not whether.

Lorraine

I fail to see how an entire regulatory regime, much of which originates from EU, can be scrapped by an EU member. EU law must still be implemented and regulated. I am not in the Dave camp, but genuinely struggle to help clarify complex regulatory detail for operational managers who are working their butts off in a recession climate and need to manage safely. Those of us in higher risk industries will see little change though I suspect.

Lorraine

I don’t expect free advice from the HSE, and can read the regulations myself, but I do expect the business to be regulated similarly whether it’s London or Edinburgh.

Major

Case in point.

I work for a principal contractor and I am involved in a development in progress at present where contractors:

• Risk Assessments
• Method Statements

Referred to a ‘RAMS’!!! must be submitted to seven (7) individuals, including the CDM-C, for ‘approval’, This is an ongoing requirement

Simplify health and safety – my bottom!

Justifiable Manna for the critics of health and safety

Stuart

There is some well researched evidence here, and the enforcement authority role split is long over due as low risk premises currently receive more inspections than higher risk ones. It’s a shame our organisation (p93) is not even referred to by its correct title. Does this reflect how much its opinion matters?

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