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August 15, 2023

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Are employers adopting an inclusive approach to health and safety management?

In our regular legal column from Eversheds Sutherland, Charlotte Wood analyses health and safety in the workplace and whether legislation is fit for purpose to manage the welfare of employees. 

Charlotte Wood, Senior Associate in Eversheds Sutherland’s Environment, Health and Safety Team.

Health and safety rarely changes, unless a trigger for change necessitates it.

The Health and Safety at Work etc. Act 1974 (HSWA) continues to be the primary source of legislation, governing the broad principles of health and safety management, and the duties owed by an employer to its employees and other relevant persons.

The general principle of ensuring the health, safety and welfare, so far as is reasonably practicable, continues to be the standard by which all employers are judged. Despite approaching 50 years since the enactment of HSWA it is difficult to envisage a change will be made to this overarching legal duty but is the law still effective and does it fit societal change?

Inclusive approach to risk assessments

Since 1974, the health and safety legal landscape has evolved, to place specific and absolute duties on employers to take steps to ensure that employees are safe whilst undertaking work-related activities.

As is the case with risk assessments, under the Management of Health and Safety at Work Regulations 1999 (MHSWR), an employer must prepare a suitable and sufficient risk assessment to identify (and keep under review) the risks to the health and safety of employees, (and persons not in their employment) to which they are exposed to at work. Such risk assessment is typically activity based, and the risks are those associated with undertaking the work activity such as manual handling, fatigue, working at height, slip and trips etc.

Whilst the general principles of prevention looks at ‘adapting the work to the individual…’ this does not always happen in practice, and there is often not a gender sensitive approach to health and safety risk management. Outside of the specific duties for temporary workers, new and expectant mothers and protection of young persons, there is no specific legal protection to other class of persons in MHSWR such as:

  • Workers affected by menstrual cycles such as endometriosis and menopause which can often have long term debilitating symptoms and physical effects, that may inhibit a worker’s ability to undertake their normal work activity.
  • Working parents, where, for example extreme fatigue or stress may impact the worker and have wider consequences beyond the home.
  • Additional lone working protection for women or class of persons who could be at higher risk than their male counterparts.
  • Trans or non-binary workers, where that person has or is undergoing gender reassignment or where the impact of gender specific tasks increase workplace exposure to risks such as manual handling tasks. Access to workplace welfare facilities and personal protective equipment which are often gender specific.

What are statistics telling us?

The Health and Safety Executive (HSE) has released work-related illness statistics which show that:

  1. 914,000 workers are experiencing work-related stress, depression or anxiety.
  2. 477,000 workers are suffering from work-related musculoskeletal disorder, with a higher proportion of workers affected in construction and human health/social work sectors.
  3. 565,999 workers sustained a non-fatal injury at work.

Whilst HSE statistics do not look in granular detail at the root and underlying causes of the incidents, stress and musculoskeletal disorders are clearly outliers. Is one of those ‘causes’ a lack of individual approach to risk management – for example, not adapting the workplace controls or working environment for a worker who is affected by menstrual cycles, causing increased stress and anxiety or not taking into account physiological and psychosocial differences between genders.

Is the law fit for purpose?

Societal changes and awareness will likely bring change to the way in which employers manage health, safety and welfare in the workplace, but will this bring about change to the law and the approved codes of practice and guidance provided by the HSE?

Possibly – but this takes time, and meanwhile the duty remains with the employer, in consultation with the employee – which should factor in wider psychosocial and, if necessary, individual factors.

To capture more valuable data on health and safety across a broader section of society, employers should encourage health and safety representatives to engage with the workforce, and better still persons from different ethnic backgrounds, women, trans and non-binary workers to feed into the challenges they are facing, which is, or likely to influence health and safety risk management.

Charlotte Wood is a Senior Associate in Eversheds Sutherland’s Environment, Health and Safety Team. She can be contacted on [email protected].

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