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July 30, 2009

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HSWA: Time to Act?

The Health and Safety at Work, etc. Act 1974 (“HSWA”) became law on 31 July 1974 and so celebrates its 35th anniversary this year. Paul Verrico takes the opportunity to consider if, and to what extent, the Act has achieved the aims for which it was introduced.

The HSWA was created largely as result of the work of the parliamentary Committee on Safety and Health at Work, led by Lord Robens, and the report that bore his name was published in June 1972. One method of assessing the relative success of the HSWA is to consider whether the problems identified by the Robens Report have been addressed by the HSWA over the course of the last 35 years.

The Robens Report itself ran to more than 80,000 words but the two principal issues it considered can be summarised as:

  • there was too much health and safety law;
  • health and safety law was too complicated.

The question therefore is: how far has the HSWA been able to address these issues?”

Too much, too complicated

Prior to the HSWA there were approximately 30 separate Acts and more than 500 sets of regulations dealing with health and safety in the workplace. These different regimes operated across different industries and workplaces and, at times, overlapped. The situation was confusing and unfair, in that it afforded some employees greater protection than others.

The HSWA was described as “a bold and far-reaching piece of legislation” and in creating overriding and universal responsibilities for both employers and employees it was a significant departure from what had existed previously. The employer’s duties under sections 2 and 3 of the HSWA embraced the concept distilled in the Robens Report that “those who create the risk are best placed to manage it”. The HSWA also recognised that employees had a responsibility for their own safety and the safety of others, as set out in section 7.

It would therefore be reasonable to conclude that the HSWA was successful in both reducing and simplifying health and safety law, given the multitude of statutes it replaced. However, the Robens Report had always envisaged that the new Act should only provide a framework for managing health and safety, which was to be supplemented by more specific regulations.

A mass of the latter have followed the HSWA and have themselves been supplemented by a bewildering array of Approved Codes of Practice (ACoPs) and other quasi-legal guidance. The benefit of having an enabling Act such as the HSWA supplemented by Regulations, AcoPs and guidance is that the legislation can keep up with industrial trends and technological advances. The downside is that even health and safety professionals think the law is complex and, to an outsider, the situation might appear as complicated as it was before 31 July 1974!

In fairness to the Robens Committee and those who drafted the HSWA, the future impact of European legislation on the complexity of UK health and safety law was unknown in the early 1970s. The first set of UK Regulations designed to implement EC requirements was made in 1978 and since then there has been an increasing European influence on UK health and safety legislation. The most famous example of UK Regulations brought in to implement EEC directives was the ‘Six Pack’, introduced in 1992, which introduced substantive and wide-ranging provisions that applied to all work places and imposed new duties on employers.

In many respects, the shift from numerous health and safety regimes to a single enabling Act with universal duties for employers and employees has cut down and simplified the law. On the other hand, the proliferation of Regulations and the move from prescriptive to goal-setting legislation has created complexity and confusion. In other words, the HSWA has been effective in simplifying the basis of health and safety law but compliance with the law has become increasingly difficult.

A safety culture shift

The Robens Report suggested that the law in 1972 was too prescriptive and that in order for health and safety legislation to be more flexible and effective it should focus on goal setting. In this sense, the Robens report was advocating a broader “self-regulating” approach rather than a rigid reliance on specific prescriptive legislation.

However, this approach of self-regulation has drawn some criticism from business. The reticence of the Health and Safety Executive to provide prescriptive and detailed instructions for businesses on how to comply with the law is doubly frustrating when failure to comply can result in prosecution. However, the HSE appears adamant that a prescriptive approach is not appropriate. The Executive’s chair, Judith Hackitt, in her recent annual Rivers lecture, [http://www.hse.gov.uk/aboutus/speeches/transcripts/hackitt180309.htm] was critical of those who call for clear and specific instructions from the HSE on how to comply with the law. It is her belief that health and safety leadership requires businesses to properly consider the risks to health and safety that their undertakings pose and then act to minimise those risks, rather than simply ticking boxes to show compliance to specific requirements.

The effect of the shift from prescriptive to goal-setting legislation is difficult to calculate. However, the last 35 years have seen a significant change in the way in which health and safety is considered and implemented in many organisations and industries. This culture shift can be at least partly attributed to the effect of the HSWA and its use of goal-setting rather than prescriptive legislation. In many reputable companies and industries the focus has shifted away from mere compliance with the law to proactive implementation of best practice with regard to health and safety issues.

Penalties

In relation to the effectiveness of health and safety law enforcement a major concern is the size of fines handed down for breaches of the HSWA and associated Regulations. Although the HSWA provides for unlimited fines in the Crown Court, amounts have rarely been significant. Indeed, fines of more than £100,000 are generally classed as ‘high’ or ‘unusual’. Another criticism is that the cost of compliance with the law is often higher than the probable cost of any penalty for breaching it. This has the effect of providing no deterrent for less reputable organisations who take the decision to flout health and safety law on the basis that this is a cheaper option than compliance.

It is noteworthy that it has taken the last 35 years and the passing of a further legal instrument (the Health and Safety (Offences) Act 2008) for a real deterrent – prison – to be made available to courts when individuals have caused non-fatal harm to another as a result of breaches of the HSWA. Previously, the only sanction available was a monetary one. Other developments that may see an increase in the amount of fines include the outcome of the Sentencing Advisory Panel’s consultation on corporate manslaughter and fatalities prosecuted under the HSWA, its recommendation being to link fines to turnover. Such an approach would clearly result in much bigger fines, especially for larger companies.

Another criticism levelled at the HSWA is that it has failed to be effective against foreign companies that operate in the UK, but have no assets within the jurisdiction. Most notoriously, the fines totalling £1 million imposed on two Swedish firms in 1997 for their part in the Port of Ramsgate gangway collapse were never enforced.

Lies, damned lies, and statistics

Another potential method to gauge the relative success of the HSWA is to consider the reduction in annual workplace fatalities since 1974, as the critical purpose of health and safety legislation is to protect employees from harm and ultimately death at work.

At first glance, the annual fatality statistics appear to provide conclusive proof that the HSWA has been a resounding success in reducing workplace deaths. The number of employees killed at work fell from 651 in 1974 to 180 for 2008/2009 (provisional figure). However, it is important to put this statistic into context.

Firstly, there has been a sizeable shift away from employment in higher-risk manufacturing and heavy industry towards lower-risk service industries. For example, 3 million ‘riskier’ jobs in manufacturing have disappeared in the last 35 years. The HSE’s own website suggests that up to 50 per cent of the reduction in fatalities can be attributed to this change in the nature of employment rather than any increase in safety.

Secondly, it is important to remember that the workplace fatality statistics do not include employees killed while driving for work. It is estimated that one third of all road deaths in the UK relate to individuals driving for work. This corresponds to approximately 850 fatalities a year, and although road safety has improved significantly since 1974, the number of individuals driving for work has also increased. The HSE has historically been reluctant to get involved in road safety, although the odd conviction has been obtained following a road death. This reluctance to use the HSWA in road circumstances has infuriated some safety campaigners.

Looking forward

Public attitudes to risk regulation have clearly changed over the past 35 years, and the HSWA has undoubtedly raised the minimum standard of safety for workers in the UK. However, there has been something of a backlash over the interpretation of the HSWA in recent times. We are all aware – and fairly fed up – of the constant stream of ‘health and safety gone mad’ stories in the media but in some instances, the criticism is justified. Take, for example, the prosecution and conviction of headmaster James Porter (conviction subsequently overturned by the Court of Appeal) [https://www.shponline.co.uk/article.asp?pagename=archive&article_id=7581] in 2007 over an incident described in court as “one in a million”. Or the recent prosecution of two large engineering companies in circumstances where the judge held there was “not a shred of evidence that there was anything to be criticised in the actions of the defendants” and that the prosecution was “unnecessary” (see In Court Analysis, SHP July 2009). These and other cases only serve to highlight the current stand-off between businesses and the HSE.

The full effect of the statutory Regulators’ Compliance Code introdcued in December 2007 is yet to be felt. The Code, with its purpose to promote efficient and effective regulation without imposing unnecessary burdens on business, may yet force the HSE to reconsider its methods, perhaps becoming less reliant on enforcement measures to meet its objectives. Only time will tell if the consultative regime of risk-based self-regulation envisaged by the Robens Report will truly emerge.

 

Paul Verrico is a solicitor-advocate with Eversheds LLP.

 

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