As we continue to mark 50 years of the Health and Safety at Work Act, David England looks back at its inception and asks what else it can offer.
Sir Robert Peel, 1st Baronet, who introduced the Health and Morals of Apprentices Act in 1802. CREDIT: Peter Righteous/Alamy Stock Photo
The legislative consideration of people’s safety at work could said to have begun in earnest in 1802 with the Health and Morals of Apprentices Act. This Act started a slow revolution towards ever greater thought being given to workers’ safety, health, and welfare which culminated in a variety of prescriptive Factories Acts following soon after. But a number of industrial disasters and a consistently high workplace injury rate suggested that prescription was not the best approach.
Laws about safety had to wait for some particular injurious circumstance to occur before consideration could be given as to how to combat it reoccurring in the future. Laws take a long time to develop and curate, and the constant pressures and lobbying from interested parties – as was witnessed throughout the early years of the various Factories Acts – meant that legislation was often already outdated by the time it received Royal Assent.
The sweeping change of the Health and Safety at Work etc. Act 1974 (HASAWA) prescribed by the Robens report gave us the platform on which to build effective, coherent safety. It also gave us the freshly-minted term ‘health and safety’ as opposed to just safety or welfare. The idea that those who created workplace risk – the owners of the workplace – were the best placed to judge the level of risk and, therefore, the type and level of effective controls to reduce it, was perhaps the inevitable conclusion to the slow revolution in safety over the preceding 150 years or so.
During research for my new book, Where Next for Health and Safety?, I found that despite 50 years of consistent improvement in workplace safety under HASAWA all is not as well as it could be in safety thinking. Many of the most regarded safety practitioners interviewed as part of that research felt that health and safety had somehow ‘lost its way’, although the precise cause and, moreover, the necessary remedy were not immediately clear.
It is certainly true that health and safety as a function has been the unwitting recipient of much ill-favour almost as soon as it was introduced as a concept by the Robens report and subsequently as law by HASAWA. Indeed, the government directed the HSE to review the ‘burden’ of health and safety legislation as early as 1989, and one wonders if the potential ‘burden’ of legislation regarding data protection or building safety will be similarly and pointedly reviewed only 15 years after their respective introduction dates. Even the wording of the titles of the various reviews into safety legislation over the years gave the impression that governments were siding with popular misconception that health and safety needed to be ‘reined in’. Common Sense, Common Safety and Reclaiming Health and Safety For All are two examples of this perhaps unhelpful insinuation.
One area of concern for the function of health and safety in the workplace has been the almost incessant drive to bundle it up with other disciplines: environment, fire, security, quality, and now, apparently, building safety. No other corporate discipline – finance, marketing, production, leadership e.g. – has suffered such distillation of purpose. It is entirely appropriate and, indeed, a legal requisite, that safety is the concern of everyone in the workplace, but this has come at the cost of safety perhaps being seen as somehow less skilful, less professional than many other disciplines.
Author of Common Sense, Common Safety, Lord Young of Graffham. CREDIT: History collection2016/Alamy Stock Photo
The cornerstone of practical health and safety, the assessment of risk, was not a consideration of HASAWA. This, I believe, is for a good reason. However we perform a risk assessment there will always be an element of subjectivity in its outcome. As humans, we each assess risk differently depending on our experiences, attitudes, and knowledge. It is not for no reason that generally when we are younger we tend to be less concerned for our personal safety because we have little or no experience of the possible consequences should something go wrong. As we age, and our experience includes accidents and incidents that have caused us pain or injury, we tend to view risk with a more critical eye.
HASAWA, by contrast, simply required that safety was acknowledged and provided so far as reasonably practicable, and this included the safety of workplaces, the machinery or plant within them, and the substances we used during the course of our work. It meant providing training and instruction relevant to that work, machinery and those substances. As the Guide to the Health and Safety at Work etc. Act 1974 (published in 1990 by HSE) succinctly put it, “The duties [of the Act] are expressed in general terms, so that they apply to all types of work activity and situations.” In effect, the entire undertaking of any organization was to be as safe as was possible when taking into account such considerations as technology, cost, and effort.
The risk assessment may help us to identify risks in the undertaking more accurately, but it is not the undertaking of the risk assessment alone that will keep people safe. That is entirely down to the control measures that we put into place; and if those are not ‘suitable and sufficient’ in themselves, then we are at risk of not providing the levels of safety that we should be providing.
In recent years, the identification of risk has become something of a rallying cry for health and safety practitioners, as though this is their raison d’être, but perhaps this has been as the expense of the subtlety of HASAWA. The confirmation by several regulations subordinate to the 1974 act only served to reinforce the prevalence of the risk assessment, such those for noise, PPE, lead, and asbestos. Regardless of whether we assess risk in these or other areas of work, or indeed how the risk assessment is carried out, Section 2 (2) of HASAWA covers them in broad terms by requiring the provision of: safe equipment, safe use of substances, relevant information and training, a safe workplace and, a safe working environment.
It is this provision of safety that is important and which relates to the outcome of a risk assessment through the control measures we implement. Certainly the subordinate legislation to the 1974 act is useful in identifying particular hazards and sources of risk, and all of this is amply covered in the wide-ranging and highly informative guidance produced by the HSE. And the quasi-legal status of the Approved Codes of Practice for many regulations means this guidance has legislative authority in its own right, albeit as a way to exemplify reasonable practicability. It is not for nothing that most health and safety prosecutions are conducted under the auspices of HASAWA.
This is because it contains all the necessary requirements to ensure the provision of workplace safety; proper, nuanced requirements that can be applied to any workplace and any undertaking being carried out there. This, of course, requires skill, experience, and knowledge in order to be able to not only identify risks in the workplace correctly, but also in providing the proper control measures to ensure the provision of safety. It allows flexibility in those control measures, flexibility which is lacking in the many of the more tightly-defined pieces of legislation that preceded HASAWA, and indeed many that also came after it. Providing safety to a standard that is judged as ‘reasonable’ takes considerable understanding of the workplace and its processes; understanding which demands greater thought and consideration than simply addressing a set list of requirements.
Maslow’s hierarchy of needs
If we compare the journey of safety legislation from the turn of the 19th century onwards to the hierarchy of needs described by Maslow, we might see that the earliest laws concerned with welfare – the Poor Laws of the 16th century – would fit Maslow’s definition of psychological needs. The second level, that of the needs of security, were fulfilled by the Health and Morals of Apprentices Act in 1802. We could postulate that the societal needs of Maslow’s fourth level were addressed by HASAWA and the fourth level of esteem by the various daughter regulations that stemmed from that act.
This leaves us with Maslow’s fifth level of self-actualisation, the achieving of one’s full potential. In corporate terms, as well as in terms of UK Plc, this means developing sustainable, profitable business which affords the appropriate and effective levels of safety not only for the individuals involved in production but also those who consume that production. This will require erudite and considered application of safety, suitable and sufficient to the levels of risk that each business creates in its undertaking and in the use of its products or services. A broad brush approach that requires knowledge of the undertaking itself and the vectors of risk it creates; a knowledge which needs professional training and experience. In short, the approach exactly taken by HASAWA.
Very informative article. There is definitely a need to increase overall, the awareness by management teams of their roles and responsibilities as leaders for ensuring that they collectively are providing the resources and skills to keep employees safe. If and as that happens maybe the HS professionals will start to be seen as a useful business support rather than a hinderance.
Maybe if we dropped the nonsense of Professional and took a more inter- disciplinary approach instead of a STEM centred view. Maybe if we accepted that all humans have frailties and are fragile and certainly not perfect and that Risk is essential for learning. If we ditched an industry that is obsessed with counting, Swiss Cheese. Zero. Bradley Curves and other nonsense we might make progress to improve Risk Intelligence.