Health and safety legislation




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Reclaiming health

and safety for all:

An independent review of

health and safety legislation


Professor Ragnar E Löfstedt

November 2011


Contents.

Foreword .

Executive summary

Recommendations

Chapter 1 Introduction

Chapter 2 Principles and approach

Chapter 3 The costs and benefits of health and safety regulation

Chapter 4 The scope of health and safety regulation

Chapter 5 The application of health and safety regulations

Chapter 6 Engaging with the EU

Chapter 7 Simplifying the regulatory framework

Chapter 8 The enforcement of health and safety regulation

Chapter 9 The wider perspective

Annex A

Annex B

Annex C

Annex D


Foreword.

Dear Minister,

In March 2011 you asked me to look into the scope for reducing the burden of health and safety regulation on business, whilst maintaining the progress that has been made in health and safety outcomes.

During the past six months I have sought views from a wide range of organisations, and have studied the available scientific literature to consider whether, on the basis of risk and evidence, health and safety regulations are appropriate or have gone too far.

I have concluded that, in general, there is no case for radically altering current health and safety legislation. The regulations place responsibilities primarily on those who create the risks, recognising that they are best placed to decide how to control them and allowing them to do so in a proportionate manner. There is a view across the board that the existing regulatory requirements are broadly right, and that regulation has a role to play in preventing injury and ill health in the workplace. Indeed, there is evidence to suggest that proportionate risk management can make good business sense.

Nonetheless, there are a number of factors that drive businesses to go beyond what the regulations require and beyond what is proportionate and I have made recommendations to tackle those which relate to regulations. These will enable businesses to reclaim ownership of the management of health and safety and see it as a vital part of their operation rather than an unnecessary and bureaucratic paperwork exercise.

Acknowledgements

The evidence gathering process has been extensive and I am grateful to the wide range of groups who contributed, including academics, professional bodies, individual businesses and representative bodies, trade associations, trades unions, victim support groups, and a large number of informed individuals.

I am especially indebted to the members of the Advisory Panel: John Armitt, Andrew Bridgen MP, Dr Adam Marshall, Andrew Miller MP and Sarah Veale CBE. Their helpful challenge and insights have been invaluable to me during the review process though the responsibility for the final content of the report and its recommendations is mine.

My thanks also to the review team who have provided my support: Niklas Percival, Bahadir Ustaoglu and Helen Smith as well as the advice and help offered by the DWP Health and Safety Sponsorship team.

Professor Ragnar E Löfstedt


Executive summary.


Introduction

  1. The focus of this review has been on the 200 or so regulations and the 53 Approved Codes of Practice (ACoPs) owned by the Health and Safety Executive (HSE). I have concentrated on areas where the evidence and contributions to my review have indicated that regulations are putting undue costs on business whilst doing little to improve health and safety outcomes.

  2. In general, the problem lies less with the regulations themselves and more with the way they are interpreted and applied. In some cases this is caused by inconsistent enforcement by regulators and in others by the influences of third parties that promote the generation of unnecessary paperwork and a focus on health and safety activities that go above and beyond the regulatory requirements. Sometimes the legislation itself can contribute to the confusion, through its overall structure, a lack of clarity, or apparent duplication in some areas.

Reviewing regulations

  1. Whilst health and safety regulation is overall broadly supported, that is not to say that every piece of regulation contributes to a safer and healthier workplace. From a risk and evidence-based perspective I have looked at the scope and application of the regulations and identified some duties that should either be removed, revised or clarified in order to reduce regulatory requirements which offer little in terms of improving health and safety outcomes.

  2. A key question for many is whether the self-employed should be included in health and safety legislation. The UK currently goes beyond EU requirements in this regard and that of some other countries that apply legislation only to those engaged in activities that are particularly hazardous or carry a risk of injury or harm to others. It is clear that the regulations should apply in such circumstances, but I believe there is a case for exempting those self-employed whose work activities pose no potential harm to others.

I therefore recommend exempting from health and safety law those self-employed whose work activities pose no potential risk of harm to others.

  1. The ‘so far as is reasonably practicable’ qualification in much of health and safety legislation was overwhelmingly supported by those who responded to the call for evidence on the grounds that it allows risks to be managed in a proportionate manner. However, there is general confusion over what it means in practice and many small businesses find it difficult to interpret.

  2. Meanwhile, there are instances where regulations designed to address real risks are being extended to cover trivial ones, whilst the requirement to carry out a risk assessment has turned into a bureaucratic nightmare for some businesses. The legal requirement to carry out a risk assessment is an important part of a risk management process but instead businesses are producing or paying for lengthy documents covering every conceivable risk, sometimes at the expense of controlling the significant risks in their workplace.

  3. So in some cases there is a need to clarify what the regulations require, either through reviewing the wording of regulation or through improved guidance. Approved Codes of Practice (ACoPs) can play an important role. They are seen as a vital part of the system and can provide practical examples of how to comply with the law, meaning they can be a particularly valuable resource for small and medium size enterprises (SMEs). But some are out-of-date and some too lengthy, technical and complex.

I therefore recommend that HSE should review all its ACoPs. The initial phase of the review should be completed by June 2012 so businesses have certainty about what is planned and when changes can be anticipated.

Health and safety regulation and the EU

  1. The scope for changing health and safety regulation is severely limited by the requirement to implement EU law. Much of the health and safety regulation that applies to businesses implements EU Directives. According to one study, 41 of the 65 new health and safety regulations introduced between 1997 and 2009 originated in the EU, and EU Directives accounted for 94 per cent of the cost of UK health and safety regulation introduced between 1998 and 2009.

  2. Many of the requirements that originate from the EU would probably exist anyway, and many are contributing to improved health and safety outcomes. There is evidence, however, that a minority impose unnecessary costs on business without obvious benefits.

  3. There have been significant improvements over recent years in the way the EU develops legislative proposals, including through their Better Regulation Agenda, the Stoiber Group and the EU Impact Assessment Board, but there is scope to go further. In particular there is a case for strengthening the role of both Impact Assessments and the Impact Assessment Board to ensure that recommendations are based on sound science and are risk-based.

I therefore recommend that the Government works more closely with the Commission and others, 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.

  1. Meanwhile, greater transparency and evidence also needs to accompany the proposals which can emerge from social dialogue agreements as Directives.

  2. These changes will take some time to bring about, and have a greater impact on the future flow of new regulation rather than the existing stock. I have therefore also considered changes that can be made in the shorter term to improve the way health and safety regulations are interpreted and applied in Great Britain.

Simplifying the regulatory framework

  1. Perhaps more than any particular regulatory requirement, the sheer mass of regulation is a key concern for many businesses. Although there is considerably less regulation than 35 years ago, businesses still feel that they have to work through too many regulations or use health and safety consultants. HSE has already started work to consolidate explosives regulations both updating the requirements and making them simpler to understand. Similar benefits could be gained from consolidating other sector-specific regulations.

I therefore recommend that HSE undertakes a programme of sector-specific consolidations to be completed by April 2015.

  1. This would reduce the number of regulations by about 35 per cent. Meanwhile HSE should commission research to consider the opportunities for a further consolidation of the core set of regulations that apply to the majority of businesses.

Addressing problems in the application of regulations

  1. Although HSE is the national regulatory body responsible for promoting better health and safety at work in Great Britain, enforcement of the majority of workplaces is shared with local authorities in accordance with the Health and Safety (Enforcing Authority) Regulations 1998.

  2. There are various examples of how the two bodies are working well together, co-ordinating resources and information to reduce the number of work-related fatalities, injuries and cases of ill health and to improve consistency in enforcement. Despite the significant improvements made, there continues to be concerns over inconsistency in the implementation of health and safety regulation across local authorities. Furthermore, by allowing each enforcing authority to only consider the workplaces within their area of control, the current regulatory arrangements generate an artificial barrier to the most efficient targeting of enforcement activity across the board. Premises that are considered relatively low risk amongst the workplaces overseen by HSE (and which are therefore not inspected) may nevertheless be riskier than many of those under local authority control, resulting in too many inspections by local authorities of relatively low-risk workplaces.

  3. To ensure that enforcement is consistent and targeted on risk, there needs to be one single body directing health and safety enforcement policy across all workplaces currently regulated by HSE and local authorities. 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.

I therefore recommend that legislation is changed to give HSE the authority to direct all local authority health and safety inspection and enforcement activity, in order to ensure that it is consistent and targeted towards the most risky workplaces.

The wider perspective

  1. Employers also face the prospect of civil action from employees or others. There is evidence to suggest that this, or at least the threat of being sued, can be a key driver for duty holders going beyond what the regulations require. The Government is already taking steps to address many of the concerns associated with the ‘compensation culture’ but I have identified two further issues associated with health and safety regulations that also require attention. These are pre-action protocols and regulations that impose a strict liability.

  2. The original intention of the pre-action protocols, to support early settlements through better and earlier exchanges of information between parties, was laudable but there is evidence that the associated standard disclosure lists in particular are being applied inappropriately and claims are not being defended if all the paperwork is not in place. Employers are also being advised to keep large numbers of records in case they are taken to court. All of this leads to an emphasis on generating paperwork for every possible risk.

  3. Meanwhile, there are cases where employees have been awarded compensation despite employers doing everything that is reasonably practicable and foreseeable. This is because certain regulations impose a strict liability on employers that makes them legally responsible for the damage and loss caused by their acts and omissions regardless of their culpability. This does not seem to be in line with the concept of ‘reasonably practicable’, nor is it clear that it is what was intended. As a result there is a need to reconsider the areas where health and safety regulation imposes strict liability.

I recommend therefore that the original intention of the pre-action protocol standard disclosure list is clarified and restated and that regulatory provisions which impose strict liability should be reviewed by June 2013 and either qualified with ‘reasonably practicable’ where strict liability is not absolutely necessary or amended to prevent civil liability from attaching to a breach of those provisions.

  1. In addition there is also a need to stimulate a debate about risk in society to ensure that everyone has a much better understanding of risk and its management.

Conclusion

  1. The general sweep of requirements set out in health and safety regulation are broadly fit for purpose but there are a few that offer little benefit to health and safety and which the Government should remove, revise or clarify, in particular the duties for self-employed people whose work activities pose no potential risk of harm to others.

  2. The much bigger problem is that regulatory requirements are misunderstood and applied inappropriately. The changes I am recommending seek to address where this arises by:

a. streamlining the body of regulation through consolidation;

b. re-directing enforcement activity towards businesses where there is the greatest risk of injury or ill health;

c. re-balancing the civil justice system by clarifying the status of pre-action protocols and reviewing strict liability provisions.

  1. This will help to ensure that all key elements of the regulatory and legal system are better targeted towards risk and support the proper management of health and safety instead of a focus on trying to cover every possible risk and accumulating paperwork.


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